demised or sold, this constitutes the lessee or vendee the agent of the owner for the purpose of purchasing the material or in procuring the labor in making the improvements, and subjects the interest of the owner in the premises to the statutory lien. The decision of this court above referred to, however, directly holds that under such circumstances, as between lessor and lessee, the interest of the lessor is not affected by such an alleged lien. Whether a different rule should apply in case a vendor requires his vendee to make improvements as part of the written contract of sale is not involved in this case, as there is no claim that in the written contract of sale in this case such a condition was imposed. In the case of Morrison, Merrill & Co. v. Clark, 20 Utah 432, 59 Pac. 235, 77 Am. St. 924, the question was again before this court in another form, and it was there held that mere knowledge by the owner that improvements are made upon his land is insufficient to subject his interest therein to a mechanic's lien. The doctrine is, however, reaffirmed in the last case mentioned that a mechanic's lien cannot be acquired upon land unless the labor is done or materials are furnished at the instance of the owner or of some person acting by his authority.

It is, however, contended by appellant that it appears from the testimony of Mrs. Condon that she expected that the Beckers would build upon and improve the property, and that hence the authority from her to bind her interest in the property is implied. In this connection it is also insisted that the appellant is not limited by the terms of a written agreement which may bind the parties to it only, but that he may show any parol agreement between Mrs. Condon and Mr. Becker from which the authority from her to him to purchase material to improve the property may directly appear or be inferred. This contention, in our judgment, is sound. The real question involved in such case is to estab lish the relation of principal and agent between the vendor and purchaser. If, therefore, the person furnishing material which is purchased for the improvement of certain property can show that the purchaser of the material was the

agent of the real owner of the property, the agency may be established in such a case, precisely as it may be in any other case. But the evidence in such a case must establish agency. Without this there can be no authority in the person purchasing the material to bind the owner of the property, who is the principal. This is well illustrated in the case of Sheehy v. Fulton, 38 Neb. 691, 57 N. W. 395, 41 Am. St. 767, a case upon which appellant strongly relies. The principle stated above is illustrated and applied in that case. The mere expectation by the owner and vendor of the land that the purchaser will make improvements upon it and in that way enhance its value is not sufficient to establish the relation of principal and agent between the vendor and vendee. Nor do we think that mere permission by the vendor to the vendee to make improvements would be sufficient, and certainly mere knowledge or acquiescence on the part of the owner is not sufficient under our statute. In the case last above cited, at page 696, of 38 Neb., and page 396 of 57 N. W. (41 Am. St. Rep. 767), in referring to the subject-matter now under consideration, the Supreme Court of Nebraska uses the following language:

"When one sells land to another, and places that other in possession, in the absence of any restrictive covenants, there is always an implied license that the vendee may make improvements on the land. The expression of direct authority to do so, independent of other circumstances, would not charge the vendor's estate."

It requires no argument to establish the soundness of the principle enunciated in the foregoing statement. No doubt, when one purchases land of any kind, he has at least the implied power to improve it in his own way. If he does so upon his own responsibility, it is not easy to perceive how, in the absence of an express statute, he thereby binds the owner of the title for the value of the improvements. Nor do we think it changes the rule if the owner either expresses his assent to the making of the improvements or permits them to be made without objection. In either case the necessary authority required by our statute in the vendee

from the vendor to bind the vendor's interest in the property is lacking. If, therefore, we construe Mrs. Condon's testimony in this regard most strongly against her, it amounts to no more than a strong expectation on her part that Becker would make some improvements upon the property in question. At any rate, it goes no further than an expressed permission upon her part that he might do so. This falls far short of the requirement of our statute as construed by this

court.

Nor can the appellant recover upon the claim that Mrs. Condon ratified the acts of Mr. Becker in purchasing the materials. She denies that she made the statement attributed to her by appellant. The trial court found against appellant on this point, and it was for that court to say who told the truth in that respect. It is clear, however, that the lumber was sold upon the credit of Mr. Becker alone. He alone was charged with the account, and no change therein was made until appellant informed himself of the true state of the title. He could not at that time change the account, so as to include Mrs. Condon, without her consent. If he did not want to trust Becker, he should have looked into the matter sooner, and consulted Mrs. Condon before he furnished the lumber to Becker, and in failing to do so he cannot now complain. We need not pause to review the numerous cases cited by appellant's counsel. It must suffice to say that the decisions in all of them are based upon written contracts between lessors and lessees, or vendors and vendees, wherein it was expressly provided that the lessees or vendees should make certain stipulated improvements upon the premises leased or sold. Many of the cases are also based upon statutes much broader than our own.

We are of the opinion that the court committed no error in rendering judgment in favor of respondent Lizzie Condon, and the judgment, therefore, should be, and accordingly is, affirmed, with costs to her.

MCCARTY, C. J., and STRAUP, J., concur.

PENNINGTON v. REDMAN VAN & STORAGE CO.

et al.

No. 1928. Decided August 4, 1908 (97 Pac. 115).

1. EVIDENCE-VALUE OF PROPERTY CONVERTED-MARKET VALUE OR PRICE. The fact that property converted has no market value or price from which the actual value can be ascertained need not be made an issue, in order to authorize evidence of the cost of the property to show its value; it being sufficient, to justify such evidence, that the court is satisfied that such is the fact.1 2. APPEAL AND ERROR-HARMLESS ERROR-RULINGS ON EVIDENCE. Where, in an action for conversion, the record disclosed that the general rule of market value as the measure of damages was not applicable to the property alleged to have been converted, defendants were not prejudiced by the erroneous admission of evidence of the cost of such articles before proof had been given showing absence of market value.

3. TRIAL-EXCEPTIONS-SCOPE. An exception to an entire instruction as a whole was unavailable, where the excepting party conceded that a portion of the instruction was proper."

4. APPEAL AND ERROR-HARMLESS ERROR-MISLEADING INSTRUCTIONS. Where, in an action for conversion, there was no direct evidence that plaintiff expended anything except time and car fare the amount of which was not shown, in regaining possession of a part of the goods converted, an instruction that the jury might allow plaintiff the costs and expenses, if any, which she had incurred, not including counsel fees, in obtaining possession of such articles, was not prejudicial to defendants, as misleading and unsupported by. the evidence; it being presumed that the jury allowed only such expenses as had been incurred and proved.3

5. EVIDENCE-SECONDARY EVIDENCE-PRELIMINARY PROOF-EXISTENCE OF WRITTEN INSTRUMENT. Where, in an action for conversion, one of the defendants alleged the existence of a note signed by plaintiff, which was unpaid at the time he took the property, and under which he claimed the right to do so, his testimony that he at one time saw a note to which he claimed plaintiff's name was subscribed, without being able to state that it was her signature, was insufficient to establish plaintiff's execution of the note, so as to authorize secondary evidence of its contents.

1 Smith v. Min. & Smelt. Supply Co., 32 Utah 21, 88 Pac. 683. * Farnsworth v. Union Pacific Coal Co., 32 Utah 112, 89 Pac. 74. Leak v. Railway Co., 9 Utah 246, 33 Pac. 1045, affirmed 163 U. S. 280, 16 Sup. Ct. 1020, 41 L. Ed. 160.

6. TRIAL-FINDINGS EVIDENCE. A finding as to the value of property alleged to have been converted cannot be upheld, as a matter of law, unless it is based on some competent evidence. 7. TROVER AND CONVERSION-DAMAGES-PERSONAL PROPERTY-VALUE TO OWNER. In an action for conversion of articles of personal property, such as heirlooms, keepsakes, etc., plaintiff is not limited to a recovery of their market value, but may recover their value, based on a reasonable consideration of their sentimental value to her.

8. SAME-PUNITIVE DAMAGES. Where plaintiff, owning certain furniture, etc., on a portion of which defendant H. had an alleged lien for an unpaid portion of the price, stored the same and departed from the State without informing H. of her intentions after which he obtained the property from the storage company and sold a large portion thereof, and plaintiff, without knowledge of the sale, remitted the balance due and demanded a surrender of the property, such facts did not render either H. or the storage company liable, in an action for conversion, for punitive damages.

9. SAME VALUE. Where, in an action for conversion of furniture, etc., plaintiff testified that most of the articles, though they had been used, were as good as new to her, and she would be required to pay the first cost price to replace them with others as good, the value of such articles converted, for the purpose of determining the damages plaintiff was entitled to recover, was not to be fixed by what others would have been willing to pay for such articles after the conversion and handling thereof by defendants, but by what they were worth to plaintiff for the uses and purposes for which she had them.

10. SAME-EXCESSIVE VERDICT. In an action for conversion of certain household furniture, etc., a verdict for plaintiff in the sum of $2,202 held excessive, and should be reduced to $1,130.55.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by K. A. Pennington against the Redman Van & Storage Company, and another. Judgment for plaintiff, and defendants appeal.

AFFIRMED, ON CONDITION.

H. J. Dinning and McGurrin & Gustin for appellants.

D. H. Wenger and E. B. Critchlow for respondent.