in equity at the instance of the party holding the option, as held in Johnston v. Trippe, 33 Fed. Rep. 536. Yet this principle cannot be held to apply to the case at bar, where no consideration is paid or agreed to be paid as a consideration for the option, and where no mutuality exists between the parties whatever. By the terms of this proposed agreement, Rice and Gelder did not agree to buy the mine. They did not agree to pay for the mine. They made no payment on the mine. They did not agree to work the mine, except at their option. They made no promise to do anything that they did not wish to do, but did contract that they should not be bound to fulfill any part of the agreement; and, if they failed to pay the money or to work the mine on their part, then the contract should be wholly void. The contract was so carefully worded as to protect Rice and Gelder from any loss or liability at their option, and at the same time to hold the defendants to full responsibility at their option, but without any consideration whatever moving to them for their agreement.

Supposing the contract had been signed by the parties on October 28, 1890, and immediately thereafter, before any money was paid, Rice and Gelder should have seen fit to repudiate it, would the defendants have any means left them to collect the $20,000, or any part of it, under such contract? We think not. The contract gave the purchasers power to render it absolutely void by failing to carry out its terms. All they had to do was to refuse to do the work or pay the money, and the contract was at an end. A proposal to accept, or an acceptance upon terms varying from those offered, is a rejection of the offer. Bank v. Hall, 101 U. S. 43. But it is not necessary to discuss this part of the case further. It is apparent that the contract, as embraced in the proposed agreement which Rice and Gelder sought to obtain from the defendants-and the

only contract which they proposed to make-was not an acceptance of the offer of sale as made by the defendants on the previous Saturday evening. There was no consideration moving from Rice and Gelder to the defendants sufficient to support their promise to convey the mine, and the agreement, if made, lacked that element of mutuality which is necessary to authorize a court of equity to decree a specific performance; that is, as Rice and Gelder were not compelled by their contract to take or pay for the mine, the defendants could not be compelled to carry out their agreement. This element of mutuality must exist to justify the enforcement of specific performance. It is true that there are exceptions to this rule, but they do not arise in this case. See Fry, Spec. Perf. § 286; Wat. Spec. Perf. §§ 196-291; Marble Co. v. Ripley, 10 Wall. 339; Lawrenson v. Butler, 1 Schoales & L. 13; Butler v. Thomson, 92 U. S. 412; Clason v. Bailey, 14 Johns. 484; Van Doren v. Robinson, 16 N. J. Eq. 256; Hawralty v. Warren, 18 N. J. Eq. 124.

It is claimed, however, that on the following morning the defendants accepted the proposed written agreement as embodying the agreement previously entered into, and that they verbally agreed to its terms, and therefore the terms of sale were agreed upon, so as to justify a recovery in this action. As to what took place when the proposed agreement was submitted for the consideration of the parties on the following morning the witnesses all differ. Their testimony is conflicting and contradictory. One of the grounds set out in the motion for a new trial was the insufficiency of the evidence to justify the verdict. It does not appear on what ground the order for a If it was granted on the ground of insufficiency of the evidence to justify the verdict,--as we presume it was,-it is well settled that a motion for a new trial on such ground

new trial was granted.

is addressed to the sound legal discretion of the trial court, and that such an order will not be reversed on appeal, unless it appears that there has been manifest abuse of such discretion. Newton v. Brown, 2 Utah, 126; Davis v. Railway Co., 3 Utah, 218; White v. Railroad Co., 8 Utah, 56; Pierce v. Schaden, 55 Cal. 407. We can discover no abuse of discretion in the trial court in making the order for a new trial. The order of the district court in granting a new trial is affirmed, with costs.

BARTCH, J., and SMITH, J., concurred.

JOSEPH BAUMGARTEN, RESPONDENT, V. FRANK HOFFMAN, APPELLANT.

NEW TRIAL.-NEWLY DISCOVERED EVIDENCE.-A new trial on the ground of newly discovered evidence should not be granted unless such evidence is very satisfactory and clear and likely to seriously affect the result, if admitted.

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts.

Mr. Maurice M. Kaighn, for the appellant.

Mr. Grant H. Smith, for the respondent.

MINER, J.:

This action was brought to recover the price of a suit

of clothes. The testimony upon the trial was conflicting. Plaintiff claims that the suit was ordered at the price of $45, and was to be ready for delivery on the 4th day of July; that on the 3d day of July, about 3 o'clock in the afternoon, defendant came to his shop, and was informed the clothes would be ready for delivery about 5 or 6 o'clock that evening. Defendant wished the clothes sent to his room, so he could use them next day, and plaintiff declined to send them to his room unless first paid for, but said he would keep the store open SO that the clothing could be had that evening. Defendant did not call for them at any time. A month or so later, plaintiff asked defendant why he did not come and get the clothes, and he replied that he had not got any money at present, but would call as soon as he got the money. The goods were not called for, and after the expiration of two years, and after altering it over at some expense, the suit was sold for $25. The defendant introduced evidence tending to contradict this testimony. The jury found a verdict for

the plaintiff in the sum of $20. The defendant moved for a new trial, founding his motion upon the insufficiency of the evidence to justify the verdict, and upon newlydiscovered evidence, based upon the affidavit of one B. B. Quinn, wherein he states that he purchased this suit from respondent and paid $45 for it. The plaintiff made a counter showing, wherein it appears that the pantaloons made for appellant were altered over, and, together with a coat and vest made for Mr. Vincent, were sold to Quinn for $45, and that deductions were made from the price of the goods. The motion was overruled, and defendant appeals from the order overruling his motion for a new trial, and from the judgment.

The testimony offered on the trial was conflicting. The jury found the issues for the plaintiff. There was sufficient evidence to justify the verdict, and the judgment should

not be disturbed on that ground. Nor do we think the
newly-discovered evidence was of such a nature as to seri-
ously affect the result if it had been known at the time,
and admitted. The facts stated in the affidavit of Quinn
are not inconsistent with those stated in the affidavit of
Baumgarten, and the latter clearly explains the former,
and tends to sustain the testimony given on the trial where
respondent claims a loss of $20 because of the failure of
the appellant to complete his contract and pay for the
goods ordered. A new trial should not be granted upon
the ground of newly-discovered evidence unless such evi-
dence is very clear and satisfactory, and
affect the result if admitted. People v.
325; Tiernan v. Trewick, 2 Utah, 393;
City, 5 Utah, 390, 16 Pac. Rep. 596.
in the record. The judgment of the

affirmed.

BARTCH, J., and SMITH, J., concurred.

likely to seriously Sackett, 14 Mich. Hopkins v. Ogden We find no error district court is

GEORGE EVERETT, RESPONDENT, v. OREGON SHORT
LINE AND UTAH NORTHERN RAILWAY COM-
PANY, APPELLANT.

RAILROADS.-Passenger.-FREIGHT TRAIN.-Where agent of a railway company, such as a conductor of a freight train, permits a person to ride upon a freight train, which is forbidden by the rules of the company to carry passengers, nevertheless if the person acted in good faith, he will be held entitled to all the rights of a passenger.