Utah) ANDERSON v. CLAYTON [2] Though Clayton did not have actual knowledge, as testified to by him, that such a contract had been made with the plaintiff by Clayton & Co., still, the contract having been so made in the course and within the scope of the partnership business by the active manager and a member of the firm, and by a person authorized to make such a contract, was Clayton's contract, as much as Cummings'. It was the firm's contract binding on Clayton, and on every other member of the firm, though Clayton had not actual knowledge of it when it was made. [3] The contract being subject to Clayton's approval, the owner of the property, the next question is: Did he approve of it? That is answered by the written contract or writing executed and delivered by himself and his wife, on the 18th day of August, by the terms of which they both agreed to sell and convey the property to the plaintiff on exactly the same terms and conditions expressed in the contract or memorandum made by Clayton & Co. The plaintiff, in his negotiations and dealings, dealt with Clayton & Co. In so doing he, in law, dealt with ClayAll his payments were ton himself, as he also did with every other member of the firm. made to the firm and to the active manager who "did the business for the company." The contention, therefore, as urged, that the payments made by plaintiff of the $800 were made to one not authorized to receive them, is untenable. If Clayton & Co. have not accounted to Clayton for the money, he must look to them, not the plaintiff. tender and demanded a deed, he also de- the undoubted authority to make such a manded of Clayton that he remove the cloud contract. on the title created by the written agreement given by Clayton and his wife to the plaintiff, and that Clayton said: "He didn't have anything to do with that; that was outlawed; he wouldn't clear it up; so I objected to receiving the deed on that ground." Upon this evidence counsel for Clayton and Goddard defend the findings and the judgment on the theory that plaintiff's complaint was grounded on the memorandum made by Clayton & Co., and since that writing, as testified to by Clayton, was made without his knowledge or consent, until after the commencement of this action, the making of the written agreement by Clayton and his wife on the 18th, did not constitute a ratification nor an adoption of the first writing; and that the plaintiff cannot recover on the second writing, the agreement of August the 18th, because he did not declare on that writing, and, further, because the payments made by plaintiff to Clayton & Co., or to Cummings, were not, in law, payments to Clayton, neither Clayton & Co. nor Cummings, as is argued, being agents of Clayton authorized to receive the payments for him. It is not so clear, as is urged by counsel, that the complaint declared alone on the The plainmemorandum of August 15th. tiff did set forth in his complaint the memorandum made by Clayton & Co. on that date and alleged that the Claytons subsequently ratified and adopted it, without alleging the manner, or the facts, of such adoption or ratification. Of course, the plaintiff contends that the execution and delivery of the agreement of the 18th by the Claytons constituted Because such an adoption or ratification. of the partnership relation, and of the undisputed evidence heretofore referred to, the so much pertinent question here is, not whether Clayton then had actual knowledge of the memorandum or writing made by Clayton & Co., but whether he and his wife, by a writing subscribed by them sufficient to satisfy the statute of frauds, agreed to sell and convey, or authorized a sale and conveyance of, the property to the plaintiff on the same terms and conditions stated and specified in the memorandum of Clayton & Co. That Clayton and Cummings were partners in business engaged in buying, selling, and dealing in real estate in conceded. [1] As affecting third parties who dealt with the firm, that partnership relation was not dissolved, but existed during all of the transactions in question. Cummings was the active manager of the firm, and the person, as testified to by Clayton himself, "who entered into the contracts and did the business of the company." Now, Clayton & Co. entered into a contract with the plaintiff to sell and convey to him the real estate in question, subject to the approval of Clayton, the owner of the property. Cummings had Upon the undisputed evidence we think the plaintiff was entitled to a judgment requiring the Claytons to convey the property to him. The judgment of the court below, denying him such relief, and directing a conveyance to Goddard, is, therefore, reversed, and the case remanded to the district court, with directions to make findings, and to state conclusions, in accordance with the views herein expressed, and to enter a judgment in favor of the plaintiff requiring the Claytons to convey the property to him by warranty deed, and adjudging that the defendants Lawver and Goddard, as against the plaintiff, have no right, title, or interest therein or thereto. [4] No complaint is made by Clayton, or by any one, of the judgment requiring him to pay $900 to Goddard in the event of Clayton's inability to convey the property to Goddard. Nor is there any complaint or contention made that such matters arising on the counterclaim or cross-complaint affected, not all, but only a portion, of the parties, nor is any relief asked against the judgment in such particular, nor is it in any manner questioned. Both Clayton and Goddard united in their efforts to defeat plaintiff's claim, and seem content with that part of the liti gation terminating in a money judgment against Clayton and in favor of Goddard. At least neither complain of it. Appeal from District Court, Salt Lake County; T. D. Lewis, Judge. Action by Ella E. Oswald against the Utah Hence that portion of the judgment is not Light & Railway Company. From a judgdisturbed by us. Costs to appellant. FRICK, C. J., and MCCARTY, J., concur. (39 Utah, 245) OSWALD v. UTAH LIGHT & RY. CO. (Supreme Court of Utah. June 6, 1911.) Y. STREET RAILROADS (§ 91*)-REGULATIONSCONSTRUCTION OF MUNICIPAL ORDINANCES. An automobilist injured by violation of an ordinance making it unlawful to run any street car without having in charge a motorman and conductor, provided that cars may be run with only one man stationed at the front end of such car when it is in motion, could rely thereon as an act of negligence. ment of nonsuit, plaintiff appeals. Affirmed. Henderson, Pierce, Critchlow & Barrett, for appellant. P. L. Williams and H. B. Thompson, for respondent. STRAUP, J. Appellant, the plaintiff below, brought this action to recover damages for an injury to her electric automobile alleged to have been sustained by her through the negligence of the defendant in the operation of an electric engine and flat cars upon a public street of Salt Lake City. The street on which the injury occurred ran east and west. The accident occurred in the daytime [Ed. Note. For other cases, see Street Rail-in one of the principal business portions of roads, Cent. Dig. §§ 190-192; Dec. Dig. § 91.*] 2. STREET RAILROADS (§ 117*) INJURIES JURY QUESTION-NEGLIGENCE. In an action against a street car company for injury to an automobile by a collision, whether defendant was negligent held a jury question. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 3. NEGLIGENCE (§ 65*)-"CONTRIBUTORY NEG LIGENCE." A plaintiff who fails to do what the law requires, or what one of prudence would ordiarily do under the same or similar circumstances, is negligent, barring recovery. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.* For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.] The requirement that a traveler look and listen for approaching cars before attempting to cross the track does not apply to a street railroad to the same extent as in crossing a steam railroad; the question of contributory negligence in the former case being generally left to the jury, while in the latter it is usually held a matter of law. the city. The plaintiff and her daughter, who had been shopping, entered the automobile, which, facing west, was standing in the street near the sidewalk. The plaintiff herself operated the machine. After starting it and moving it a little toward the west she "turned it in a circle so that it faced south" towards the street railway track. Before attempting to cross the track she looked along it towards the east and saw "a black object" on the track, the electric engine, but did not see the three or four flat cars in front of it, pushed to the west and toward her. No one was on the flat cars observing a lookout as they approached, nor was there any gong sounded or bell rung, or other warning signals given of the approach of the cars. The plaintiff, after testifying that she was sitting on the left side of the machine and had looked towards the east along the track as she left the gutter, and saw only the black object on the track about 50 or 60 feet away, testified that, "knowing that I had an abundance of time to cross the street," she drove the automobile a little to the west and then south towards the track, and, while crossing, the drawbar of the flat car struck the front [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] 5. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEG-left-hand side of her machine about where LIGENCE QUESTION FOR COURT. When the conduct is such that reasonable minds may not differ as to what a prudent person would ordinarily have done under the circumstances, the question of contributory negligence is for the court. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 333-346; Dec. Dig. § 136.*] 6. STREET RAILROADS (§ 99*)-INJURIES-CONTRIBUTORY NEGLIGENCE. While plaintiff looked toward the track upon approaching a street car track in her automobile, she testified that she only saw a black object on the track, which was in fact an electric engine some 50 or 60 feet away, though there were also several flat cars in front of the engine. and she was unable to tell what the object was and whether it was standing or moving, and that she did not see the flat cars until they were about two feet from the automobile. Held, that plaintiff was negligent, preventing recovery for injuries to the automobile by collision. her feet were, and pushed her machine along the track two or three feet, injuring it. On direct examination she was asked and answered: "Q. State whether or not you observed it (the black object) was a car or an electric engine, or whether you observed what particular kind of a street car it was. A. No, sir; I just saw it was a black object up there, and I had plenty of time to get across. Q. Did you notice whether at that time it was moving? A. I did not notice." On cross-examination: "Q. And that thing that you saw in the distance you do not know what it was; you did not know at the time? A. No, sir. Q. And you did not know whether it was standing or moving? A. No, sir. Q. Now, is it not a fact that you had [Ed. Note. For other cases, see Street Rail- an idea what it was? A. Yes, sir; I may roads, Cent. Dig. §§ 209-216; Dec. Dig. § 99.*]' have had an idea. Q. Tell us what that idea For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Utah) OSWALD v. UTAH LIGHT & RY. CO. was. A. The idea was that whatever it was I had an abundance of time to get across the street." She further testified that she did not see the flat cars in front of the electric engine until the forward car was about two feet away and struck the machine. The flat cars had no sides extending above the floor of the car. The floor was about six inches above the wheels. How high the floor was above the ground or rails is not made to appear. On account of the condition of the weather-somewhat cloudy and rainy-the plaintiff had the hood or top of the automobile up, and in looking east along the track she was required to lean somewhat forward. It is not made to appear, nor is it claimed, that the top interfered with her looking or seeing the electric engine or flat cars, or because of the condition of the weather, or for any other cause, they were not plainly visible. It was alleged in the complaint, and admitted in the answer, that the defendant owned and operated the street railway, and that the cars were operated by it. [1] The plaintiff had pleaded and offered in evidence the following city ordinance: "It shall be unlawful for any person, firm or corporation owning or operating any street railway within the corporate limits of Salt Lake City, to run any car on or over any track so owned or operated, without having in charge of such car a motorman and a conductor; provided that cars may be run and operated with only one man in charge thereof, if at all times when the car is in motion he shall be stationed at the front end of such car and have charge of the motor." The court, on defendant's objection, excluded the ordinance, on the theory that it related "only to street cars carrying passengers," and was "enacted for the purpose of protecting passengers riding on cars," and since the electric engine and flat cars were not carrying passengers the ordinance was not pertinent. This ruling is complained of. We think the court erred in its interpretation of the ordinance and in excluding it. The purpose of the ordinance is not only for the protection of passengers on cars, but also for the protection of pedestrians and travelers on and along streets upon which cars are operated, and to avoid collision with and injury to them. street she looked toward the east and saw [3] That contributory negligence bars recovery, and that a plaintiff, who fails to conform to what the law requires of him, or to do what a person of prudence would ordinarily have done under the same or similar circumstances, is guilty of negligence, are axioms of the law. The law as provided by the ordinance prescribed some conduct for Courts have declared that the defendant. the omission or commission of something in violation of a valid statute, or of an ordinance reasonable in its terms, is negligence, or evidence of negligence. The law, however, has not prescribed the conduct of a person situated as was the plaintiff. It did impose a duty on her to use ordinary care; but further than that her conduct was not prescribed by law. Except in comparatively few instances the law does not prescribe what persons shall do, nor may courts say that the specific alleged and proven acts of commission or omission constitute negligence. In a large majority of cases the law in such particulars gives no specific instructions or directions. It gave none here with respect to plaintiff's conduct. In determining whether she was or was not guilty of negligence therefore involves two questions. First, the fixing of a standard of what a prudent person ordinarily would have done under the same or similar circumstances; and, second, whether the plaintiff's conduct came up to that standard. Such questions ordinarily are for the jury. Efforts have been made by courts to fix a mark, or line, where, in the determination of such questions, the province of the court ends and that of the jury begins. Courts quite generally have said that the failure of a traveler to look and listen for approaching cars before attempting to cross a steam railshows that before she undertook to cross the way track constitutes negligence as matter [2] At the conclusion of plaintiff's case the court, on defendant's motion, granted a nonsuit on the ground of insufficiency of evidence to show negligence on the part of the defendant, and upon the further ground that the plaintiff was guilty of contributory negligence. This ruling is also assigned as er ror. In reviewing it we will consider the When case with the ordinance in evidence. so considered the evidence of defendant's negligence was sufficient to require a submission of the case to the jury. Whether the plaintiff was herself guilty of contributory The evidence negligence is more serious. care. of law. That is, the courts themselves pronounce such conduct negligence on the facts. But aside from such and similar cases, and of cases where the conduct is prescribed by statute or ordinance, the cases are rare where the courts have undertaken to characterize given conduct as negligence or due The question generally is left to the jury. In determining when the province of the court ends, and that of the jury begins, much difficulty has been experienced by courts. They generally say the province of the one ends and the other begins when reasonable minds may differ as to the facts, or the inferences or conclusions to be drawn from either disputed or undisputed facts, with respect to the questions of what a pru'dent person ordinarily would have done under the same or similar circumstances, and whether the conduct of the person charged with negligence came up to that standard. But it is about as difficult to determine that, as it is to determine what a prudent person ordinarily would have done under the circumstances of the case. [4] Courts generally have held, and so have we, that the requirements of a traveler to look and listen for approaching cars before attempting to cross a steam railway track do not apply to the same extent to one erossing a street railway track. For a failure to do the one the courts generally have pronounced the conduct negligence on the facts; for failure to do the other, courts generally have left the question to the jury. [5] When, however, the conduct is suchaccepting the general test for want of a better one-that reasonable minds may not differ as to what a prudent person ordinarily would have done under the circumstances, and whether the conduct of the person charged with negligence came up to that standard, like one heedlessly walking or driving in front of a moving car, the court may itself pronounce the conduct negligence. Now what is the situation here? A prudent person under some circumstances may attempt to drive or walk across a street railway track without looking for the approach of cars. Let it be assumed that whether he ordinarily would do so under most circumstances is a question of fact. The plaintiff, however, testified that she looked, but looked so inattentively or purposelessly that she knew not whether the object seen by her was a street car or something else. The question, therefore, is not whether a prudent person before attempting to cross a street car track ordinarily was or was not required to look for approaching cars, or whether he ordinarily would or would not have done so, but whether a prudent person, in looking, under the circumstances testified to by plaintiff, and exercising the care in that particular that a prudent person ordinarily would exercise, would so have conducted or behaved himself that he, under the circumstances ordinarily would have seen no more than did plaintiff. We must, and do, assume she looked. She so testified. But what shall be said of her conduct in looking, the manner in which she in that particular conducted or behaved herself, as testified to by herself, that she looked so purposelessly, so inattentively that, with a view unobstructed, and in the daytime, she was unable to tell whether the black object, but 50 or 60 feet away, was a street car or something else, whether it was standing or moving, and that she did not see the flat cars, though the forward car, as she turned her machine to cross the track, was then almost in front of her and in her direct path. She did not testify that she saw the flat car too late to stop her machine and avoid the collision, but that she, notwithstanding her looking, had not seen it, until it was about two feet from the machine and collided with it. But one may [6] May reasonable minds differ that such conduct was the ordinary conduct of a prudent person under the circumstances? We think not. Counsel say that a prudent person in looking as did the plaintiff might well have seen the electric engine but not the flat cars, because they were considerably lower than the object looked at, and because of the infrequency of flat cars pushed or drawn along street car tracks. There may be cases where one may receive impressions by mistaking or misconceiving the facts or objects, or their appearance, and act on such impressions, and not be guilty of negligence. also be guilty of mistaking or misconceiving facts or objects or appearances, negligently. Plaintiff's not seeing the flat cars, and not knowing whether the black object seen by her was a street car or something else, or whether it was standing or moving, did not result from such a mistake or misconception, but from her conduct in looking in an objectless and aimless manner, from her negligent or careless behavior in that regard. Because of that thoughtless and purposeless manner of looking and of her careless conduct in that regard, the flat cars were not seen by her, though they were plainly visible and almost in her direct path as she undertook to cross the track. We think the nonsuit was properly granted on the ground of contributory negligence. The judgment of the court below is therefore affirmed, with costs. FRICK, C. J., and MCCARTY, J., concur. (39 Utah, 316) FINNELL et al. v. ARMOURA. (Supreme Court of Utah. June 16, 1911.) 1. BANKRUPTCY (8 425*)- DISCHARGE IN BANKRUPTCY-CLAIMS DISCHARGED. A creditor, whose claim was scheduled in a petition in bankruptcy under debtor's right name, and provable, had a suit pending in justice's court against the debtor, under a wrong name, by reason of the action of the justice. There was nothing to show that the creditor had dealt with the debtor under the wrong name. Held, that the claim of the creditor was properly scheduled, and a discharge in bankruptcy released the debtor, under Bankr. Act July 1, 1898. c. 541, § 17, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), from liability thereon. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 775; Dec. Dig. § 425.*] 2. PAYMENT (§ 82*)-VOLUNTARY PAYMENT. Where a judgment debtor, who had obtained a discharge in bankruptcy releasing him from liability on the judgment, delivered to an officer threatening to levy on the entire business of the debtor to satisfy the judgment a check, on the understanding that it should be deposited with the clerk of the court to be returned to the debtor on his establishing his claim that the liability was discharged, the delivery of the check was not a voluntary payment, and the debtor could recover the check. [Ed. Note. For other cases, see Payment, Cent. Dig. §§ 254-266; Dec. Dig. § 82.*] Appeal from District Court, Salt Lake County; M. L. Ritchie, Judge. Proceedings by Frank Armoura, alias Frank Arima, to quash an execution issued against him on a judgment recovered against him by C. V. Finnell and another, as Finnell & Hutchings. From a judgment quashing the execution, the judgment creditors appeal. Affirmed. $128.30, action having been commenced on this account in the justice's court of Murray City, Utah;" that on the 9th day of February, 1907, the United States District Court duly entered an order adjudging respondent a bankrupt; that the action referred to in the statement just quoted from was pending in said justice's court when respondent was adjudged a bankrupt; that thereafter, on the 3d day of June, 1907, and after all of the provisions of the bankruptcy act had been fully complied with, said United States District Court duly entered an order discharging respondent from all debts provable under the bankruptcy act, and excepted from said discharge only such as are excepted in said act; that the respondent was not indebted to appellants otherwise than on said open account and in the amount aforesaid; that, notwithstanding said bankruptcy proceedings, and after respondent had been adjudicated a bankrupt as aforesaid, appellants nevertheless proceeded with the action pending in the justice's court aforesaid, and on the 19th day of March, 1907, a judgment was entered in said action against the respondent; that respondent in said action was sued by the name of Frank Armoura and judgment was entered against him by said name, although his true name is Frank Arima; that a transcript of said judgment was thereafter duly filed in the office of the district court clerk in Salt Lake county, and that, prior to the 4th day of July, 1910, an execution was duly issued by said clerk on said judgment; that on and prior to the 4th day of July, 1910, the respondent owned E. A. Walton, for appellants. H. A. Smith, and was conducting a small business at for respondent. Wandemere, Salt Lake county, from which he derived some profit; that on the 4th day FRICK, C. J. This was a summary pro- of July aforesaid, which was one of the ceeding instituted in the foregoing action, best business days in the year for said busiand based upon a motion to quash an execu-ness, respondent during said day had receivtion which, it is alleged, was issued or based ed from said business the sum of $120; that upon a judgment which, for the reasons hereinafter stated, was and is unenforceable against the respondent. on said day, while the respondent was conducting his said business, and while his receipts were increasing, one C. L. Schettler, a deputy sheriff of Salt Lake county, who had the execution aforesaid in his hands for service, demanded payment of the judgment so obtained in said justice's court of Murray City as aforesaid, which, with interest and costs, amounted to the sum of $212. The undisputed facts, briefly stated, are: That on the 5th day of February, 1907, respondent, under his name of Frank Arima, filed his petition in the United States District Court in which, after setting forth the necessary facts, he prayed to be adjudged a bankrupt and discharged as such. In connec-05, from the respondent; that said deputy tion with said petition, he duly filed the schedules, oaths, and summary required by the bankruptcy act. In such schedules he set forth the fact that, among others, he was indebted to appellants upon an open account, which he scheduled in the following words: "One due C. V. Finnell and L. J. Hutchings, doing business as Finnell & Hutchings, a partnership, of Bingham, Utah, contracted during years 1904 and 1905, being an open account for meat and merchandise sold and delivered to bankrupt, of the full value of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 117 P.-4 sheriff, at the time he made demand for payment as aforesaid, informed respondent that he, said deputy, had said execution in his possession, and that, unless payment of said judgment were made immediately by respondent, he (the said deputy) would close up and take possession of respondent's business; that respondent then informed said deputy sheriff that he (the respondent) had obtained the benefit of the bankruptcy act, and that he "had been discharged in bankruptcy from said indebtedness;" that it was |