[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 525-534.]

2. INSANE PERSONS- CONTRACTS - LIABILITY FOR GUARDIAN'S DEFAULT.

The relation of principal and agent not existing between an insane person and his guardian, where such person is sought to be held upon a default of the guardian's promise or undertaking, an insane person was not liable to her tenant for injuries resulting from her guardian's breach of a covenant to cover a cellarway.*

3. LANDLORD AND TENANT-PREMISES-INJURY

DEFECT-CONTRIBUTORY NEGLIGENCE

OF TENANT.

Though a landlord break a covenant to cover a cellarway, he is not liable for injuries to a tenant who falls therein, where, knowing the nature of the defect, the tenant fails to exercise her right to repair the defect and deduct the expense from the rent, or to surrender the premises, and exposes herself to the risk of injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 643.] =

Appeal from District Court, Salt Lake County; T. D. Lewis, Judge.

Action by Mrs. L. J. Reams against Josephine Taylor. From a judgment dismissing the action, plaintiff appeals. Affirmed.

C. S. Patterson, for appellant. Stewart, Stewart & Budge, for respondent.

FRICK, J. This is an action for damages for personal injuries. The material allegations in the complaint are, in substance, as follows: That the defendant is an insane person, and that one Thomas E. Taylor is the duly appointed and acting guardian of the person and estate of the defendant. That the defendant is the owner of certain real estate in Salt Lake City, Utah, describing it, upon which is situate a certain two-story building used for tenement purposes. That at a time stated the plaintiff leased from Thomas E. Taylor, "agent and guardian" of the defendant, a part of said building to be occupied by plaintiff as by plaintiff as a tenant. That the lease was oral, and that, at the time of the making thereof, there existed a certain cellarway which opened or extended into a driveway extending along some tance from said building, and which cellarway was distant four feet from the door which opened into the apartment leased and to be occupied by the plaintiff. "That at the time said plaintiff so leased said property from said defendant she called the attention of said Thomas E. Taylor, guardian and agent as aforesaid, to said cellarway, and to the dangerous condition thereof, and informed him that, if she leased said prem

*Andrus v. Blazzard, 23 Utah, 233, 63 Pac. 888, 54 L. R. A. 354.

87 P.-69

ises, she would require the defendant to protect said cellarway by means of a door or otherwise, in order to make the same safe, and avoid the danger of falling into said cellarway and receiving injury therefrom. That the said Thomas E. Taylor, guardian and agent, as aforesaid, at that time promised and agreed to make said cellarway safe, and to cover the opening by means of a door." About a month after the leasing and occupancy of said apartment by plaintiff, and at the time when said guardian called for the first monthly installment of rent, plaintiff again called his attention to said cellarway, which remained in the same condition as when she leased the apart ment, and said guardian "again promised and agreed to have said cellarway sufficiently protected." That in leasing said premises plaintiff relied on the promises of said Thomas E. Taylor, and that, in case he had not promised to make the repairs aforesaid, she would not have leased said apartment and remained therein. That about two months after taking possession of said apartment the plaintiff, in going along said driveway, and in passing said cellarway, in attempting to reach the door leading to her apartment, in the nighttime, walked into said cellarway and fell, sustaining personal injuries and damages, to recover which this action is brought. Thomas E. Taylor, the guardian, is not made a party to the action, nor is any recovery sought against him. He was, however, served with summons as the guardian of the defendant, she continuing to be an insane and incompetent person, and as such guardian he interposed a demurrer to the complaint setting forth various grounds, one of which is that the complaint does not state facts sufficient to constitute a cause of action. The lower court sustained the demurrer, and plaintiff electing not to amend her complaint further, a judgment dismissing the action was duly entered against her, from which she prosecutes this appeal.

There are various errors assigned, but, in view of the conclusion reached, we shall consider but the one error, to wit, did the court err in sustaining the demurrer upon the ground that the complaint does not state a cause of action, and in entering judgment dismissing the action? It will be observed that plaintiff seeks to recover judgment against an insane or incompetent person, and thus hold her estate liable. While the action is one sounding in tort, it seems to be based upon a contract or agreement made by the guardian of the defendant in respect to repairs to be made by him on the cellarway. In this view it is clear that, if the defect in the cellarway had been repaired, as alleged, the plaintiff would not have fallen into it; and hence there would have been no cause for this action. The demurrer, of course, admits the agreement,

If

The theory upon which plaintiff seeks to recover in this action is not very clear. The agreement by the guardian to make the repairs is perhaps pleaded for the purpose of avoiding the application of the doctrine of contributory negligence against, or assumption of, the risk by the plaintiff. it is not for this purpose, we can conceive of no other unless it be for the purpose of recovering as upon a breach of said agreement, from which the injury arose. If recovery is sought upon the ground that the plaintiff relied upon the special promise of the guardian to repair the cellarway, and that the guardian in making the promise thereby assumed the risk of injury therefrom, then a recovery against defendant would be possible only upon the ground that the guardian acted as the authorized agent of the defendant, and, as such agent, could, and did, bind her in that regard.

In this case, however, the principle upon which the relation of principal and agent is based, wholly fails. There cannot be an agent unless there is a principal. In order to create the relation there must exist a person who is competent to select and appoint an agent to act for the principal. An agent can and does exercise delegated powers only, and an incompetent person cannot delegate powers arising, either directly or by implication of law. The doctrine of principal and agent, therefore, cannot apply between an insane person and his guardian, at least not where the insane person is sought to be held upon a default of the supposed agent's personal promise or understaking. This is settled by the case of Andrus v. Blazzard, 23 Utah, 233, and authorities cited at pages 248, 249, 63 Pac. 888, 54 L. R. A. 354. The exceptions to the general rule above stated and referred to in Mechem on Agency, § 48, and the other authorities cited by counsel for appellant, have no application to this case. The case of In re Strasburger, 132 N. Y. 128, 30 N. E. 379, is one of that class of cases where a person, after entering into a lease containing certain covenants, become insane, and his estate is sued for a breach of these covenants. In such cases the covenants do not cease, although the covenantor becomes insane or incompetent. His estate must still comply with the covenants, or become liable thereon. Neither is the case of Stillwell v. So. Louisville Land Co. (Ky.) 58 S. W. 696, 52 L. R. A. 325, cited by counsel for appellant, applicable to the facts in the case at bar. It is true that the agreement set forth in that case is, in many of its features, much like the one in this case, but in that case the agreement was pleaded for the sole purpose of avoiding the defense of contributory negligence. In that case the agreement was made with the owner of the property, personally, and such owner was sued, and it was held that the tenant had a right to rely on the

the defect in the premises, and that by this promise the owner assumed the risk of injury to the child of the tenant; and hence the tenant was not guilty of contributory negligence in permitting his child to be on the leased premises. Both the defect and the circumstances were, however, different than they are in the case at bar. If, in this case. suit were brought against the guardian personally, the question would be presented, in one phase perhaps, that is presented in that case. In the case at bar, however, the plaintiff is presumed to know the law. She knew that she was dealing with the guardian of an insane person, and that, therefore, the guardian could not bind the insane person by the agreement; and hence she should have governed herself accordingly. She had no right to go upon the assumption that the estate of the insane person would, as a matter of law, be held liable in case she was injured by reason of the guardian's failure to comply with this agreement to close up the open cellarway. As against the estate of the insane person, we are clearly of the opinion that it was plaintiff's duty to guard against injury from that source; that, with full knowledge of the conditions surrounding her, as clearly appears from the allegations of the complaint, she assumed the risk of injury. Under the allegations of her complaint she became simply a tenant, and, as such, was charged with full knowledge of the legal rights and duties pertaining to that relation. It will, we think, not be disputed that, in the absence of deceit or misrepresentation by the landlord, the tenant will take the risk of the condition of the premises leased by him, and, if injured by reason of their unsafe condition, especially when open and unconcealed, as a general rule, cannot recover against the landlord for such injury.

In the case at bar there was neither deceit nor misrepresentation, and the contract or agreement made by the guardian, as we have seen, was not binding upon the insane owner of the property; hence her estate, if bound at all, would have to be bound under the general law applicable to the relation of landlord and tenant. Under this law the plaintiff does not state a cause of action. Tuttle v. G. F. Gilbert Mfg. Co. (Mass.) 13 N. E. 465. Under the authorities, she was guilty of contributory negligence, and likewise of having assumed the risk of injury, in view of her knowledge of the defect complained of, and, after knowledge thereof, having continued in the possession of the premises. The case of Hamilton v. Feary (Ind. App.) 35 N. E. 48, 52 Am. St. Rep. 485, is a well-considered

Under the law, as stated in that case, the plaintiff could not recover against the defendant in view of the allegations of the complaint even if the defendant had been a competent person, and had personally made the agreement set forth in the complaint.

The plaintiff would, as against her landlord, have had no right to expose herself to the risk of injury from existing and visible defects in the premises leased by her. It was her duty to repair the defect and deduct the expense therefor from the rent, or she might, under the lease in this case, have surrendered the premises. She chose to do neither; and hence cannot recover. The following cases all support the conclusions reached by us: Kampinsky v. Hallo (City Ct.) 23 N. Y. Supp. 114; Kabus v. Frost, 18 Jones & S. (N. Y.) 72; Edwards v. N. Y. & H..R. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Arnold v. Clark, 13 Jones & S. (N. Y.) 252; Hendry v. Squier, 126 Ind. 19, 25 N. E. 830, 9 L. R. A. 798; Town v. Armstrong, 75 Mich. 580, 42 N. W. 983.

We do not wish to be understood as holding that, in a proper case, the tenant might not recover against the landlord for personal injuries sustained by the tenant arising from defective premises. What we do hold is that the case at bar does not fall within the principles of law where such a recovery is permissible.

The court, therefore, did not err in sustaining the demurrer, and in dismissing the action.

The judgment is affirmed, with costs.

An action to recover for death of a railroad employé from injuries received was brought against the railroad company by which he was employed and another. The railroad company alone answered, though its codefendant was also served with process. A trial resulted in a verdict against the defendants jointly. Held that the railroad company's codefendant was an "adverse party" within Rev. St. 1898, § 3305 providing for the service of notice of appeal on the adverse party or his attorney, where it did not affirmatively appear from the record that he could not be injuriously affected by a reversal of the case, since it would be presumed that, as he did not appeal, he was satisfied with the judgment, as a greater judgment might be entered against him on a retrial.*

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2137, 2138.]

Appeal from District Court, Second District; J. A. Howell, Judge.

Action by Pauline Griffin as administratrix of the estate of H. J. Griffin, deceased, against the Southern Pacific Company and another. From a judgment for plaintiff, the railroad company appeals. Appeal dismissed, and judgment affirmed.

*Bank v. Loan & Building Co., 13 Utah, 189, 44 Pac. 1043; Rache v. Stanley, 15 Utah, 314, 49 Pac. 648; Stephens v. Stevens, 27 Utah, 261, 75 Pac. 619; Nelden-Judson Drug Co. v. Bank et al. (Utah) 86 Pac. 498.

C. L. Williams, Geo. H. Smith, and Jno, G. Willis, for appellant. A. W. Agee, for respondent.

MCCARTY, C. J. Plaintiff, as administratrix of the estate of Herbert J. Griffin, brought this action against the Southern Pacific Company and Charles E. Austin to recover damages for the death of deceased on December 1, 1903, resulting from injuries received by him while in the employ of the defendant company as a locomotive fireman. The Southern Pacific Company appeared and filed its answer in the case. The defendant, Charles E. Austin, although duly served with process, never made any appearance, and his default was duly entered of record. A trial was had which resulted in a verdict against defendants jointly and in favor of plaintiff for the sum of $8,000. Judgment was duly entered on the verdict in favor of plaintiff and against defendants jointly. To reverse this judgment the Southern Pacific Company alone appeals. Respondent now challenges the jurisdiction of this court to hear and determine the questions raised by the appeal on the ground that appellant's codefendant, Austin, was not served with notice of appeal nor in any way made a party to the appeal. This court, in harmony with the great weight of authority, has repeatedly held that every party to an action whose interests may be adversely affected by an appeal of such action, must be made a party to the appeal. Bank v. Loan & Building Co., 13 Utah, 189, 44 Pac. 1043; Rache v. Stanley, 15 Utah, 314, 49 Pac. 648; Stephens v. Stevens, 27 Utah, 261, 75 Pac. 619; Nelden-Judson Drug Co. v. Bank, et al. (Utah) 86 Pac. 498.

But appellant contends that Austin is not, in any sense, an "adverse party," as is contemplated by section 3305, Rev. St. 1898, which provides that "an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specified part thereof, and serving a similar notice on the adverse party or his attorney." In the case of Bank v. Loan & Building Co., supra, this court, in harmony with the weight of authority, held that an adverse party, within the meaning of the statute, includes "all defendants whose interests would be injuriously affected by a reversal or modification of the judgment." This doctrine was reaffirmed in the case of Rache v. Stanley, supra. The question, therefore, arises: Might the reversal of the judgment injuriously affect Austin? This court cannot indulge in the presumption that it would not. This action was brought to recover the sum of $25,000, and, as herein before stated, judgment was entered for $8,000, and as Austin failed to appeal, it is presumed that he is satisfied with the judgment. Belden v. Andrews (Sup.) 43 N. Y. Supp. 587; Williams v. Starr et al., 5 Wis. 534. A new trial might result in a judgment being entered for a sum far

in excess of the amount of the judgment appealed from, in which case, it is obvious that Austin's interests would be materially and injuriously affected by a reversal of the case; and this, too, regardless of whether the case is reversed as to both of the defendants, or as to the Southern Pacific Company only.

The Supreme Court of California in the case of Senter v. De Bernal, 38 Cal. 637, in construing a statute similar to the one under consideration, said: "The question is as to the meaning of the words 'adverse party' as here used, and as to that we think there can be no rational doubt. Each party whose interests in the subject-matter of the appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken is, we think, an adverse party within the meaning of these provisions in the Code, irrespective of the question whether he appears upon the face of the record in the attitude of a plaintiff or defendant or intervener." The federal courts have, in a long line of decisions, uniformly adhered to this rule. The following are a few of the more recent cases wherein it is held that, in order to confer jurisdiction on an appellate court of cases wherein the judgment appealed from is joint, all the parties against whom the judgment is rendered should join in the writ of error, and, if any of them refuse to join, then the record must disclose that the party or parties not joining were served with notice. Hardee v. Wilson, 146 U. S. 181, 13 Sup. Ct. 39, 36 L. Ed. 933; Mason v. U. S., 136 U. S. 581, 10 Sup. Ct. 1062, 34 L. Ed. 345; Inglehart v. Stansbury, 151 U. S. 72, 14 Sup. Ct. 237, 38 L. Ed. 76; Davis v. Mercantile Trust Co., 152 U. S. 593, 14 Sup. Ct. 693, 38 L. Ed. 563; Beardsley v. Ark. & Louisiana Ry., 158 U. S. 127, 15 Sup. Ct. 786, 39 L. Ed. 919; Hollbrook, etc., Con. Co. v. Menard (C. C. A.) 145 Fed. 498. See also Elliott, App. Proc. 138. We are of the opinion, and so hold, that unless it affirmatively appears from the record that a party to an action would not be injuriously affected by a reversal of the case, such party must be served with notice in case an appeal is taken, otherwise this court can acquire no jurisdiction over the action except to dismiss the appeal, and thereby affirm the judgment appealed from. Elliott, App. Proc. 144.

such intention. Section 3005 provides that when, for any reason satisfactory to the court or judge, the aggrieved party has failed to apply for a new trial during the term, the court or judge may grant the relief on application within a specified time. Held, that an application and showing to the court setting forth some grounds why a motion was not made under section 3294 is prerequisite to a right to serve the notice under section 3005.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 244.]

2. EVIDENCE - JUDICIAL NOTICE - TERMS OF COURT.

On a question as to whether appellant moved for a new trial during the term, the Supreme Court cannot take judicial notice as to when the term adjourned in the absence of any statutory or constitutional provision, fixing the time.

[Ed. Note.-For cases in point, see Cent. Dig. vol 20, Evidence, § 56.]

3. APPEAL-DECISIONS REVIEWABLE - ORDER ON MOTION FOR NEW TRIAL.

An appeal lies only from the judgment, and not from an order denying or granting a motion for a new trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 402, 477, 740, 741.]

4. SAME TIME FOR TAKING APPEAL.

Under Rev. St. 1898, § 3301, providing that an appeal may be taken within 6 months from the entry of judgment an appeal may be taken within 6 months after the overruling of a motion for a new trial, made within the time allowed by law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1895.]

Appeal from District Court, Third District; R. W. Morse, Judge.

Action by George F. Felt, doing business as the George F. Felt Lumber Co., against Alzora Cook and others. From a judgment in favor of defendants, plaintiff appeals. Appeal dismissed.

N. V. Jones, for appellant. A. L. Hoppaugh, for respondents.

STRAUP, J. A motion is made to dismiss the appeal on the ground that it was not taken in time. Section 3301, Rev. St. 1898, provides that an appeal may be taken within 6 months from the entry of judgment or order appealed from. The findings and decree were filed and entered July 11, 1905, and, on the day following, a notice of such filing and entry was served. A motion for a new trial, on the ground of newly discovered evidence, was served and filed Feb

FRICK and STRAUP, JJ., concur.

(31 Utah, 299)

FELT v. COOK et al. (Supreme Court of Utah. Dec. 8, 1906.) 1. NEW TRIAL-PROCEEDINGS TO PROCURETIME FOR APPLICATION-EXCUSE FOR DELAY.

Rev. St. 1898, § 3301, provides that a party intending to move for a new trial must, within 5 days after verdict, serve and file a notice of

notice of entry of judgment. On March 10, 1906, the motion for a new trial was denied. On June 29, 1906, a notice of appeal was served and filed, appealing from the judgment entered July 11, 1905, and from the order made March 10, 1906. The statute provides (section 3294) that the party, intending to move for a new trial, must, within 5 days after the verdict of the jury, or after notice of the decision of the court or referee, if the action were tried without a jury, serve and file a notice of such intention. The time in which to serve or file

a notice of such a motion for a new trial was not enlarged.

was

Section 3005, provides that when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for a new trial or other relief sought during the term at which such judgment, order, or proceeding or proceeding complained of taken, the court, or judge thereof, in vacation, may grant the relief upon the application made within a reasonable time not exceeding 6 months after the adjournment of the term. It is claimed by the appellant that his notice of motion was filed pursuant to this section. The record does not disclose that any application was made for leave to file it. It was filed and served by the appellant as matter of course, without leave or showing. The aggrieved party may, under the five days' statute, and within the time therein specified or enlarged, as matter of right, serve and file a notice of motion for a new trial; but he may not do so under section 3005. To invoke the aid and jurisdiction of the court under the latter section it is requisite that an application and showing be made to the court setting forth some grounds why the motion was not made, and the relief sought within the five days' statute.

Furthermore, the notice for new trial was filed 71% months after the judgment was taken. The statute provides that the relief may be granted upon application made within a reasonable time not exceeding 6 months after the adjournment of the term. It is not made to appear when the term during which the judgment was taken, commenced, or ended, or adjourned. There is no statute nor constitutional provision fixing the commencement or ending of the term of the district courts. We cannot take judicial knowledge of when the term during which the judg ment was taken adjourned. Appellant is required to show affirmatively that his application was made within 6 months after the adjournment of the term. This he has failed to do. For aught that appears, the term adjourned the day the judgment was taken. We cannot presume that it continued for a month and a half thereafter before adjournment. Failing to show that an application or showing was made for leave to file a motion for new trial, and, failing to show that the application was made within the time allowed by the statute, the appellant was not in position to invoke the jurisdiction of the court to entertain the motion. 1 Spelling, New Trial, §§ 24, 355; Clark v. Perry, 17 Colo. 56, 28 Pac. 329. This court has repeatedly held, under the statute, that an appeal lies only from the judgment, and not from an order denying or granting a motion for a new trial; that a judgment is not final while a motion for a new trial, made within the time allowed by law, is pending and undisposed of; and that the appeal may be taken within 6

months after the overruling of such motion for a new trial. But the appellant here has not made nor filed any motion for a new trial as by law provided. What he did in the premises was as though no motion for a new trial had been attempted. The finality of the judgment was, therefore, not prevented nor stayed by any motion for a new trial, and hence the 6 months in which appellant was required to prosecute the appeal began to run from the entry of the judgment. The appeal was not taken until 111⁄2 months thereafter.

The appeal is therefore dismissed, with costs.

MCCARTY, C, J., and FRICK, J., concur.

(150 Cal. 51)

HUNT BROS. CO. et al. v. SAN LORENZO WATER CO. (S. F. 3,572.) (Supreme Court of California. Oct. 11, 1906.) 1. DAMAGES-BREACH OF CONTRACT-CONSEQUENCES WITHIN CONTEMPLATION OF PARTIES.

Under Civ. Code, § 3300, fixing the mensure of damages for breach of contract as the amount which in the ordinary course of things will be likely to result therefrom, the damages recoverable for a breach of contract are only such as may reasonably be supposed to have been within the contemplation of the parties. at the time of the making of the contract as the probable result of the breach, in the light of the facts known, or which should have been known.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15. Damages, § 58.] 2. SAME.

Where a contract calls for a continuance of an instituted water service for the purpose of extinguishing fires, loss by fire as the consequence of a breach may be reasonably supposed to have been within the contemplation of the parties, and therefore recoverable. 3. SAME.

A manufacturer and a water company entered into an agreement whereby the company agreed to lay a main to a point near the manufacturer's premises, connect the premises by a service pipe to supply the manufacturer with water at a specified rate, and erect and install a fire hydrant near the premises to be used by the manufacturer in case of fire. No time was prescribed for the completion of the work, or for the commencement of the service, except that it was to commence on the installation of the necessary pipes and hydrant. Subsequently the company promised to commence work immediately. No special circumstances were known to the company or to the manufacturer making it essential to the protection of its property from fire that the contemplated service should be commenced within any particular time. Held, that damages by fire to the manufacturer's property before the installation of the fire hydrant were not recoverable, for they could not reasonably be supposed to be within the contemplation of the parties.

In Bank. Appeal from Superior Court, Alameda County; F. B. Ogden, Judge.

Action by the Hunt Bros. Company and others against the San Lorenzo Water Company. From a judgment for defendant rendered on sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.