self liable thereon, cannot, therefore, be sustained as a general rule. The agent is only liable on the contract in those cases in which he has used apt words to bind himself, or has expressly pledged his personal responsibility, or in which the credit was given to him personally." Hall v. Crandall, 29 Cal. 567; Lander v. Castro, 43 Cal. 497; Johnson v. Smith, 21 Conn. 627; Mechem, Ag. § 550. In a note to the latter citation many cases are reported sustaining the principle announced. As to the latter proposition above, see 1 Am. & Eng. Enc. Law (2d Ed.) 1127; Michael v. Jones, 84 Mo. 578; Cement Co. v. Jones, 8 Mo. App. 373; Humphrey v. Jones, 71 Mo. 62; Taylor v. Shelton, 30 Conn. 122; Ogden v. Raymond, 22 Conn. 379; Mechem, Ag. § 546. I am also of the opinion that evidence was admissible to show the knowledge of the parties that the note was intended as the obligation of the principal, and not of the agent, and that it was given and accepted as such. There is some conflict of authority on this subject, but the weight thereof sustains the doctrine stated. The subject is fully discussed in Mechem, Ag. § 441, where the authorities are collected, and the author therein states that the weight of authority sustains the doctrine announced. See, also, 1 Rand. Com. Paper, § 147. The case of Metcalf v. Williams, 104 U. S. 93, 26 L. Ed. 665, and Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, also sustain the same doctrine. See, also, Kean v. Davis, 21 N. J. Law, 683; 2 Notes on U. S. Reports, p. 34; and Mechem, Ag. § 288. In my opinion, the judgment of the district court should be affirmed. (23 Utah, 209) In re CHRISTENSEN'S ESTATE. APPEAL-REMAND-LAW OF CASE. Where an issue has been once determined by an appellate court, and the cause sent back for further proceedings in accordance with the appellate decision, evidence which tends only to raise the issue already determined by the appellate court is properly rejected.1 (Syllabus by the Court.) Appeal from district court, Seventh district; Jacob Johnson, Judge. In the matter of the estate of Herman J. Christensen. From an order allowing the distributive share to the widow, Andrew H. Christensen and others appeal. Affirmed. Ferdinand Erickson and Rawlins, Thurman, Hurd & Wedgwood, for appellants Zane & Rogers and W. D. Livingston, for respondents. BARTCH, J. It appears from the record that Herman J. Christensen died intestate on June 26, 1897, and that on July 12th o In re Christensen, 53 Pac. 1003, 17 Utah, 412. the same year an administrator of his estate was appointed by the district court of Sanpete county, sitting as a court of probate. Thereupon Hannah Christensen, by her guardian, presented to the court a petition alleging that she was the lawful wife of the deceased, and asking that an allowance be made to her as his widow. The administrator, by answer to the petition, denied that the petitioner was the wife of the intestate at the time of his death, and that she was his lawful widow. At the trial of the issue thus raised the court held that the petitioner was not the lawful widow of the deceased, and refused to make any allowance to her out of his estate. From that judgment she | appealed, and this court, upon such appeal, reversed the judgment, and remanded the cause to the lower court, with directions "to recognize the petitioner as the lawful widow of the decedent, and to adjudicate the rights of the respective parties found to have an interest in his estate, and to make payment or distribution thereof according to law." The cause having been remanded to the district court, both the administrator and the appellants herein filed separate petitions, praying that final distribution be made, and the estate brought to a close. The administrator, in his petition, alleged that Hannah Christensen was the widow of the deceased, and, as such, was entitled to one-third of the estate. The appellants alleged that she claimed to be the widow of deceased, but was not such in fact, and was not entitled to any distributive share of the estate. At the hearing the court refused to admit testimony, offered by the appellants, for the purpose of proving that Hannah Christensen was divorced from the deceased by a decree of the probate court of Sanpete county on December 5, 1854, and entered a decree of distribution by which one-third of the residue of the estate was distributed to her as the widow of the intestate. On this appeal it is insisted by the appellants that the court erred in excluding the testimony offered referring to the alleged divorce. We see no error in the exclusion of such testimony. The question as to the validity of the alleged divorce was presented to and decided by this court upon the former appeal. The decree of divorce was then held void, Hannah Christensen was held to be the lawful wife of the deceased, and the court was ordered to make distribution of the estate accordingly. In re Christensen, 17 Utah, 412, 53 Pac. 1003. When, therefore, after the cause had been remanded with directions to the trial court to recognize the petitioner as the lawful widow of the deceased in the distribution of the estate, the appellants, in the subsequent proceedings, again offered substantially the same evidence, for the purpose of again trying the same issue which the appellate court had passed upon and determined, the evidence was properly rejected. The action of the trial court in the premises was strictly in ac cordance with the mandate of this court, and we find no reversible error in the record. The judgment is affirmed, with costs. MINER, C. J., and BASKIN, J., concur. (23 Utah, 152) MARKS v. TAYLOR et al.1 (Supreme Court of Utah. Jan. 12, 1901.) PROCEDURE-EXAMINATION OF WITNESS-ACTION ΤΟ REFORM-MISTAKE-EVIDENCEEQUITY PLEADING COMPLAINT-SUFFICIEN CY-ASSIGNMENT OF ERROR. 1. If, in reply to a question which might be answered by a conclusion of the witness, the witness states the facts instead of his conclusion, the other party is not injured, and uo error committed. 2. In an action to reform a mortgage and sheriff's deed, when it appears from the evidence that one F. conducted the negotiations, procured the loan, and drew the note and mortgage for the defendants, although not directly authorized to do so by them, when they accepted the loan, and executed the note and mortgage, they ratified the acts of F., and were bound thereby as effectually as if they had in express terms authorized him to act as their agent, and whatever occurred between F. and the plaintiff in the negotiations which resulted in the loan and the execution of the note and mortgage was a part of the res gestæ, and therefore admissible in evidence. 3. Evidence that the person drawing a mortgage intended to include land other than that actually included is, in an action to reform the mortgage on the ground of mistake, material, and strong evidence of the alleged mistake. 4. A complaint in equity, which sets forth the negotiations for a loan from plaintiff to defendants, the consummation thereof, and alleges that by mistake the property promised as security was not all included in the mortgage, sufficiently states the cause of action for reformation. 5. In an action to reform a written instrument on the ground of mistake, a court of equity will not only reform the instrument in which the mistake occurred, but all subsequent instruments which have perpetuated such mistake, so as to administer a full measure of relief, avoid circuity of action, and promote justice. 6. Assignments of error upon the ground of insufficiency of the evidence, without stating the particulars in which the evidence is insufficient, as required by section 3284, Rev. St. 1898. cannot be considered. 7. Where, in an action to reform, the defendant in his answer does not disclaim title to any portion of the premises described in the complaint, and when sworn as a witness admits purchasing it, the proof that defendant owned the land sought to be included in the reformed deed is sufficient. (Syllabus by the Court.) Appeal from district court, Salt Lake county; Ogden Hiles, Judge. Action by Anna Marks against Thomas E. Taylor and Emma L. Taylor. Judgment for plaintiff. Defendants appeal. Affirmed. C. S. Patterson and Daniel Harrington, for appellants. Zane & Rogers, for respondent. BASKIN, J. This is an action to reform a mortgage, and the sheriff's deed made to the purchaser upon the sale of the mortgaged 1 Rehearing granted February 16, 1901. 63 P.-57 premises. It appears that a short time previous to August 24, 1894, Taylor Bros., who were in the loan and insurance business, and were brothers of Thomas E. Taylor, one of the defendants, applied to one Ernest M. Fowler, who was engaged in the business of procuring loans, to procure a loan for the said Thomas E. Taylor on the security of certain real estate in Salt Lake City; that the said Fowler then applied to the plaintiff, from whom he had previously procured loans, to make the loan requested by Taylor Bros.; that Taylor Bros., before the said Fowler applied to the plaintiff to make the loan, had shown him the real estate upon which the desired loan was proposed, and that the same was inclosed by an old fence and the walls of buildings thereon; that the said Fowler, before the loan was made, went with the plaintiff upon the ground, and pointed out the premises, and showed her the buildings thereon; that after the plaintiff was shown the premises she consented to make the desired loan of $3,000, and the said Fowler thereupon drew up a note for the amount, and a mortgage to secure the same, but instead of including, as he intended, the premises pointed out to him by Taylor Bros., and by him to the plaintiff, by mistake and oversight only a portion of the premises so pointed out were included in the description. This note and mortgage was executed and delivered to the plaintiff upon the payment by her of the said sum of $3,000. The plaintiff testified that at the time she loaned the money she supposed she was obtaining as security the property that Fowler pointed out to her, and would not have made the loan if she had known, or had any reason to believe, that the mortgage did not embrace the premises shown to her, and that she relied on Mr. Fowler and Taylor to see that she got what she bargained for. It further appears that Fowler was paid a commission by Taylor Bros.; that, upon default in the payment of the note being made, the mortgage was foreclosed, and the mortgaged premises were bid in by the plaintiff, and after the period of redemption had expired a deed to her of the premises was made by the sheriff, and she took possession of the same; that the plaintiff for a long time after the foreclosure sale and after the execution of the sheriff's deed was ignorant that the mortgage did not include all of the property pointed out to her; that afterwards the said Thomas E. Taylor made claim to the portion of the premises pointed out to the plaintiff, which by mistake and oversight was omitted from the description of the property in the mortgage, and began to tear down a building situated thereon, whereupon the plaintiff instituted this action. The defendants do not deny the execution and delivery by them of said note and mortgage. The foregoing facts, in substance, were alleged in the complaint, and are embraced by the findings of fact of the trial court, and are fully sustained by the evidence. A decree was made and entered in the court below, as prayed for in the complaint, and from this decree this appeal is taken. On the direct examination of Fowler, after he had stated that he had had something to do with the making of the loan, he was asked by plaintiff's counsel: "For whom were you acting in that direction?" To this question the defendants' counsel objected, on the ground that the question called for the conclusion of the witness. The objection was overruled, and the action of the court was excepted to, and is assigned as error. The witness, instead of answering the question directly, stated, without further objec tion, the facts relating to him herein before set out, and, as these facts show for whom he acted, the appellants were in no wise injured. The second assignment of error discussed In the brief of appellants is as follows: "That the court erred in overruling the motion of the defendants to exclude from the record all the testimony of the witness Ernest M. Fowler in regard to the conversation with the plaintiff, for the reason that no testimony was offered or introduced by the plaintiff which tended to show that the witness was the agent of the defendants." No reference is made in the brief either to the abstract or transcript where such a motion was made, and, after careful search in both, we have been unable to discover that such a motion was made. In the transcript, however, early in the examination of Fowler, a motion was made to strike out his testimony previously given, on the ground mentioned, but, after that motion had been overruled, he was examined and cross-examined, re-examined and recross-examined, at great length, and no motion was made to strike out his testimony given subsequent to the first motion. The trial court had not, therefore, passed upon any such motion as that upon which said assignment of error is based. However, as it appears from the evidence that Fowler conducted the negotiations, procured the loan, and drew the note and mortgage for the defendants, although not directly authorized to do so by the defendants, when they accepted the loan and executed the note and mortgage, they ratified Fowler's acts, and were bound thereby as effectually as if they had in express terms authorized him to act as their agent, and whatever occurred between Fowler and the plaintiff in the negotiations which resulted in the loan and the execution of the note and mortgage was a part of the res gestæ, and therefore admissible in evidence. Counsel for the plaintiff asked Fowler the following question: "In drawing the mortgage, did you intend to have other property than that included in the mortgage?" To this question defendants' counsel objected, on the ground that it was immaterial, and assigns as error the overruling of this objection. Certainly, if Fowler intended to include in the mortgage the land claimed to have been erroneously omitted, and which was pointed out by him to the plaintiff, that fact was strong evidence of the alleged mistake. The question was well calculated to elicit the facts, and was therefore proper. The appellants also rely upon the following assignments of error: "That the court erred in overruling defendants' motion for nonsuit at the close of the plaintiff's testimony for the following reasons: (a) That the complaint failed to state a cause of ac tion; (b) that the court had no jurisdiction to grant the relief prayed for; (c) that there was no sufficient evidence offered or introduced to show that the defendants were guilty of any false or fraudulent statements, or that the plaintiff was misled thereby; (d) that there was no sufficient evidence to prove that the plaintiff and the defendants, either through themselves or agents, were mutually mistaken in drawing the mortgage described in plaintiff's complaint; (e) that there was no sufficient evidence to prove that the plaintiff and the defendants, either through themselves or through their agents, mutually agreed upon any contract other than that contained in the mortgage; (f) that there was no evidence offered by the plaintiff to prove that any part of the property which the plaintiff sought to recover by a reformed decree was ever owned by the defendants; (g) that the evidence showed that the plaintiff had been negligent in not sooner discovering and asserting her alleged claim." In regard to assignments "a" and "b," in the case of Quivey v. Baker, 37 Cal. 465, the scrivener, in drawing up a mortgage, made a mistake in the description of a lot which he intended to describe, by transposing the numbers of the block and range. The mortgage was afterwards foreclosed, and the mortgagee became the purchaser, and took possession. Afterwards, Quivey, who claimed under a chain of conveyances from the mortgagor, brought a suit of ejectment against the party in possession, who claimed under mesne conveyance from the mortgagee. The defendant set up as an equitable defense the mistake in the description of the mortgage. In the opinion rendered in the case, the court said: "But it is said the mortgage cannot now be reformed, because it has become merged in the judgment of foreclosure, and that it is not competent for a court of equity to reform the judgment and the sheriff's deed. We have been referred to no authorities in support of this proposition, and, on principles of reason and justice, we do not perceive why a court of equity may not reform mistakes in judgments or decrees in like manner as in written instruments. But it is said there was no mistake, either in the decree or sheriff's deed, which followed the description in the mortgage, and could not have done otherwise, and consequently there is no mistake to reform in either of them. As well might it be claimed that if there be a mistake in the first of a series of convey ances, which was carried out through all the subsequent conveyances, the court could only correct the mistakes in the first deed, and that, in fact, there was no mistake in the subsequent deeds, which were correctly copied from the first, as they were intended to be. But a court of equity does not administer justice on these narrow principles. It will not only go back to the original error and reform it, but will administer complete justice, by correcting all subsequent mistakes which grew out of, and were superinduced by, the first. It would be a vain thing to reform the first and perpetuate the last by refusing to disturb it. The rule in equity is to do nothing in halves, but in proper cases to administer a full measure of relief, so as to avoid circuity of action and promote the ends of justice." Donald v. Beals, 57 Cal. 405. In the case of Born v. Schrenkeisen, 110 N. Y. 55, 59, 17 N. E. 339, the court said: "In such a case, if, by the mistake of the scrivener or by any other inadvertence, the writing does not express the agreement actually made, it may be reformed by the court. It is only where the action is to reform the agreement itself that it is required that it should be alleged in the pleading and proved on the trial that the mistake was mutual. Where there is no mistake about the agreement, and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected. Pitcher v. Hennessey, 48 N. Y. 415." In the case at bar the conditions upon which the loan was made were agreed upon by and between Fowler and the plaintiff, and the evidence shows beyond doubt that it was agreed that the loan should be secured by a mortgage upon the premises pointed out by Fowler to the plaintiff, and that Fowler, in drawing the mortgage, by mistake omitted part of the premises which it was intended should be included therein. In the case of Smith v. Jordan, 13 Minn. 264, 270 (Gil. 246), the court said that: "Whether the error in a written contract is the result of intentional or unintentional misstatements of the defendants is immaterial, for a court of equity has power to correct it as well in the former as in the latter case. The charge here is that the agreement of the parties was not correctly reduced to writing; that the error is the result of fraud or mistake." In the case at bar the evidence clearly shows that the error in the mortgage resulted from mistake, and not from fraud. It is clear that the complaint stated a cause of action, and that the court below had jurisdiction to grant the relief prayed for. Assignments "c," "d," and "e" we cannot consider, because the particulars in which the evidence is insufficient are not specified in the exceptions, as required by section 3284, Rev. St. 1898. Van Pelt v. Park, 18 Utah, 141, 55 Pac. 381. In regard to assignment "f," the defendant Thomas E. Taylor testified as follows: "I obtained the title to the south 5 rods of this ground several years after I obtained the title to the north 5 rods. In the beginning I owned 26 feet front and 5 rods deep only. My next purchase was the 4 by 5 rods in the rear, which would include all the ground described in plaintiff's complaint, except the entrance to the stairway." This defendant in his answer did not disclaim title to any portion of the premises described in the complaint. Assignment "g" is not supported by the evidence. There are several assignments based upon alleged insufficiency of the evidence to support certain parts of the findings. The particulars in which the evidence is insufficient in these respects are not specified. However, we are of the opinion that the findings are supported by the evidence. There are some other assignments of minor importance, which it is not necessary to specifically pass upon. There is no reversible error appearing in the record. It is ordered that the judgment of the court below be affirmed, with costs. MINER, C. J., and BARTCH, J., concur. (23 Utah, 183) ELLISON v. BARNES. (Supreme Court of Utah. Jan. 10, 1901.) ELECTIONS-MEMBERS OF LEGISLATURE-JU RISDICTION-COURTS-TRIAL. 1. The provisions of Const. art. 6, § 10, making each house of the legislature the judge of the election and qualifications of its members, is an exclusive grant of power to each house, forbidden to be exercised by article 5, § 1, by any person in the exercise of powers belonging to a different department of the government, and the courts have no jurisdiction to try and determine contests for seats in the legislature. 2. Where the trial by a court of an election contest would be a vain and fruitless proceeding, and another trial by the state senate would be necessary to determine the rights of par ties, the court will not assume jurisdiction for any purpose. 3. Under proper proceedings courts may determine all matters pertaining to the conduct of elections and the returns thereof, including the issuance of a certificate of election of a candidate elected to the office of legislator who has received a majority of legal votes, but through fraud has been deprived of the certificate showing his prima facie right to the office. (Syllabus by the Court.) Appeal from district court, Second district; before Justice H. H. Rolapp. Action by Ephraim P. Ellison against J. G. M. Barnes. Judgment for defendant. Plaintiff appeals. Affirmed. . Pierce, Critchlow & Barrette, P. L. Williams, and D. H. Wenger, for appellant. J. H. Moyle and Rawlins, Thurman, Hurd & Wedgwood, for respondent. BASKIN, J. This is an action contesting, under the provisions of chapter 9, p. 282, Rev. St. 1898, the election of the respondent to the 1 See Kimball v. City of Grantsville, 57 Pac. 1, 19 Utah, 368, 45 L. R. A. 628. office of state senator. A demurrer to the complaint was sustained on the ground that the court below had no jurisdiction to try and determine the same. Upon the demurrer being sustained, the appellant rested, and judgment dismissing the action was rendered. The The only question, therefore, presented is whether the court below had jurisdiction. Section 914 of said chapter provides that "the election of any person to any public office * * may be contested" on the grounds therein stated. Section 917 provides that the contestant "must, within forty days after the return day of the election, file with the clerk of the district court of the county within or for which such office is to be exercised a written statement setting forth specifically" the requirements therein mentioned, among which are the grounds of such contest. The appellant complied with all the requirements of said section. It appears that both the appellant and respondent were regularly nominated as candidates for the office of state senator in the Third senatorial district, and were voted for at the late general election. Upon the canvass of the votes by the canvassing board the board determined that the respondent had received one more vote than the appellant, and issued to the respondent a certificate of election. appellant alleged that seven illegal votes were cast and counted for the respondent, and that certain legal votes cast for the appellant were rejected, and that a correct canvass of the votes would show that he was elected. Section 925 of said chapter provides that, "if in any such case it appears that a person other than the one returned has the highest number of legal votes, the court must declare such person elected.” The canvassing board were not made parties to this action, and it is not sought to have a recanvass of the votes, but the only relief sought is a declaration by the court, as provided under the last section referred to, that the appellant has been elected. Such a declaration, if made, would be of no avail to the appellant; nor could any judgment rendered in the case in favor of the appellant be enforced, because under the provisions of the constitution the state senate has the exclusive jurisdiction to determine which of the parties was elected and entitled to a seat in that body. Const. art. 6, § 10, provides that "each house shall be the judge of the election and qualifications of its members." Article 5, § 1, provides that "the powers of the government of the state of Utah shall be divided into three distinct departments, the legislative, the executive and the judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted." Article 1, § 26, provides that "the provisions of the constitution are mandatory and prohibitory, un less by express words they are declared otherwise." The powers conferred upon each house of the legislature under section 10, art. 6, are forbidden to be exercised, by article 5, § 1, by any person in the exercise of powers belonging to a different department of the government. Neither is it anywhere declared in the constitution that the power conferred upon each house to judge of the election and the qualifications of its members is otherwise than prohibitory in respect to the other departments. Chief Justice Bartch, in the opinion in the case of Kimball v. City of Grantsville, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628, said, "The apportionment of distinct power to one department of itself implies an inhibition against its exercise by either of the other departments.” It therefore follows that that power is exclusively lodged in each house of the legis lature, and the courts have no jurisdiction to try and determine contests for seats in the legislature. Un It is conceded by counsel for the appellant that any decision which the court may make in this case would not bind the senate, but that it would still possess the right to try and finally determine which of the parties was elected and should be seated. Therefore a trial and determination by the court would not settle the rights of either of the parties, but another trial by the senate would be necessary to accomplish that end. A trial and determination of such cases by the court would be a vain and fruitless proceeding. Chapter 9 of the election law (page 282, Rev. St. 1898) does not, as claimed by the appellant, warrant the contest in question. In the case of State v. Gilmore, 20 Kan. 551, the court say: “An act which purported to grant to the district court power to remove from office must be construed as not embracing members of the legislature; or, if the language specifically names or necessarily includes them, then, as to them, the act is unconstitutional." der constitutions containing provisions similar to section 10, art. 6, of our constitution, the views herein before expressed are fully sustained by the authorities. The following is a quotation from the opinion of the court in the case of Dalton v. State, 43 Ohio St. 652, 680: "The jurisdiction of each house to decide upon the elections, returns, and qualification of its own members is supreme and exclusive. Cooley, Const. Lim. 133; State v. Jarrett, 17 Md. 309; People v. Mahaney, 13 Mich. 481. No court of the state has, nor is it possible under our present constitution to clothe any court of the state with, the power to decide upon the validity of the returns of the election of any candidate for either house, or to decide him elected or defeated." It was held in the case of People v. Mahaney, in an opinion delivered by Judge Cooley (13 Mich. 481), that the constitution of Michigan, providing that each house shall judge of the qualifications, elections, and returns of its members, confers upon each house powers of a judicial nature, |