question not having been presented by coun- | defense is breach of contract in the failure sel prior to the rendition of such judgment. to deliver the wagons within the time agreed After a consideration of the argument had upon, and a counterclaim for damages thereand briefs filed, we adhere to the views ex- for. After a trial before a jury, judgment pressed in our former opinion, reported in was entered upon a general verdict in favor 108 Pac. 461. of the plaintiffs for the amount claimed, less certain agreed deductions, and for interest and costs. From the judgment, and the order overruling the motion for new trial, this appeal is prosecuted.

It is therefore ordered that, should the appellees elect to file a remittitur in this court within 20 days hereafter in the amount of $64,564.63, judgment shall be entered in this court in favor of the appellees and against the appellants and the sureties upon the bond on appeal, and against the Pacific Surety Company, surety upon the bond given in the court below, in the sum of $67,435.39, with costs in the trial court, and that the costs of this appeal be awarded to the appellants; otherwise, that the judgment be reversed and the cause remanded for a new trial.

The appellant urges a reversal upon the ground that the verdict and judgment is contrary to and not supported by the evidence in various enumerated particulars. Without stating the evidence, which could serve no useful purpose, it is sufficient to say that we have examined the record and find that the verdict is clearly supported by the evidence in each particular specified. This court, therefore, will not disturb the verdict.

Error is also alleged in the refusal of the

The CHIEF JUSTICE and DOAN, J., not trial court to admit evidence as to damage sitting.

(13 Ariz. 283)

ARIZONA POWER CO. v. RACINE-
SATTLEY CO.

(Supreme Court of Arizona. March 25, 1911.)
1. SALES (§ 418*)—-DELAY IN DELIVERY-DAM-

AGES.

A delay of 15 days in delivering wagons sold for freighting purposes will not warrant damages suffered through the increased cost of hauling the freight, in the absence of a showing that facts were brought to the seller's attention which would have put him on notice that such damages might result from changed hauling conditions.

[Ed. Note.-For other cases, see Sales, Cent. Dig. $$ 1174-1201; Dec. Dig. § 418.*] 2. TRIAL (8 255*)-INSTRUCTIONS-REQUESTS.

Where, in an action for the price of wagons sold, defendant claimed damages for delay in delivery, and requested instructions on substantial damages, but none on nominal damages, there was no error in not submitting the issue of nominal damages.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*] 3. APPEAL AND ERROR (§ 171*) - PRESENTA TION OF GROUNDS OF REVIEW-THEORY OF

TRIAL.

An assignment presenting a different theory of the case than that presented on the trial will not be considered on appeal.

[Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 1053-1069; Dec. Dig. § 171.*]

Appeal from District Court, Yavapai County; before Justice Edward M. Doe.

Action by the Racine-Sattley Company against the Arizona Power Company. From a judgment in favor of plaintiff, and from an order overruling a motion for new trial, defendant appeals. Affirmed.

ons.

resulting from delay in delivery alleged to have been suffered through the increased cost of hauling of freight, for which purpose the wagons had been purchased. There is no evidence that facts were brought to the attention of the appellee prior to entering into the contract which would have even put it upon notice that such damage might result from a failure to promptly deliver the wagThe argument seems to be that the very nature of the specifications for the wagons ordered differing from wagons in stock should have apprised the appellee of the use for which they were intended and of the damage to result from a failure in immediate delivery. There is no merit in the contention. That a few days' delay in shipment of wagons for freighting purposeseven 15 days or more, as appellant contends

should find hauling conditions so changed as to result in increasing the cost of transporting freight is unusual, and not to be anticipated. Such damage is special. The facts must be shown to have been brought to the attention of the seller, and it should reasonably appear that the seller entered into the contract contemplating that his default would probably entail the particular loss claimed before he is to be held responsible therefor. Globe Ref. Co. v. Landa Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171; Central Trust Co. v. Clark, 92 Fed. 293, 34 C. C. A. 354; Moffitt-West Drug Co. v. Byrd, 92 Fed. 290, 34 C. C. A. 351.

The defendant and appellant further con tend that the trial court erred in failing to submit to the jury the issue of nominal damages. The case was tried upon the theory that the defendant had sustained substan

Le Roy Anderson, for appellant. Norris, tial damage. The appellant made several reRoss & Smith, for appellee.

LEWIS, J. This is an action of debt for the purchase price of certain wagons. The

quests for instructions upon that theory, which were allowed and given. It made no request for an instruction upon an issue of nominal damage. Even were there merit in

T

the assignment, and we are of the opinion DOE, J. The facts are sufficiently stated that there is none, the defendant having re- by appellant as follows; This is an action ceived and retained the wagons, and its only instituted by appellee against appellant in right upon the record being to offset damages the district court of Graham county for the sustained by reason of the delay in delivery, recovery of commissions alleged to be due we would decline to consider the alleged er- appellee by appellant on account of an allegror, as the record clearly discloses that the ed sale of a tract of land by appellee as assignment presents a theory of the case dif- agent of appellant. From a judgment in ferent from that adopted by both parties and plaintiff's favor, this appeal is prosecuted. the court upon the trial. Tevis v. Ryan, 108 The first assignment of error is that the Pac. 461. As we have just pointed out, the district court was without jurisdiction to error, if any, is technical. To have sub-hear and determine the cause. The rules of mitted the issue would merely have resulted this court require the abstract of record to in the reduction of the verdict by a nominal amount, assuming the issue to have been determined in favor of the appellant. Cases cited to the rule that where the issue of nominal damages might result in a verdict for the complaining party and carry costs have no application.

contain "the minute entries of the trial court," and "such other portions of the record as may be necessary to inform the court of the errors relied upon without an investigation of the record itself." In this case the abstract contains neither the minute entries nor other essential portions of the recThe judgment of the trial court is af- ord sufficient to inform the court of the erfirmed.

ror relied upon without an investigation of the record itself, and therefore wholly fails

KENT, C. J., and DOAN and CAMP- to present any basis for a review of appelBELL, JJ., concur.

(13 Ariz. 336)

OLNEY V. BISHOP.. (Supreme Court of Arizona. March 25, 1911.) 1. APPEAL AND Error (§§ 674, 694*)-RECORD -REVIEW.

Where the abstract did not conform to the rules, in that it did not contain the minute entries nor evidence, nor other essential portions of the record sufficient to inform the court of the error relied on without an examination of the record itself, assignments that the trial court had no jurisdiction and that the evidence was insufficient would not be reviewed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2874, 2910; Dec. Dig. 88

674, 694.*]

2. PLEADING (§ 46*)-NAMES.

Use of initials, instead of the Christian name, though not commendable, is permissible. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 101-103; Dec. Dig. § 46.*] 3. PLEADING (§ 192*)-Demurrer.

Use of initials, instead of Christian name, can be attacked by motion only, and not by demurrer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 408-427; Dec. Dig. § 192.*] 4. PLEADING (§ 8*)-CONCLUSIONS.

An allegation that plaintiff was authorized to procure a purchaser for defendant's property

was a mere conclusion of law.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 12-282; Dec. Dig. § 8.*]

Appeal from District Court, Graham County; before Justice Lewis.

Action by H. W. Bishop against George A. Olney. From a judgment for plaintiff, defendant appeals. Reversed.

W. C. McFarland, for appellant. W. K. Dia, for appellee.

lant's assignment that the trial court was without jurisdiction to hear and determine the cause. Daniel v. Gallagher, 11 Ariz. 151, 89 Pac. 412; Richardson v. Powers, 11 Ariz. 31, 89 Pac. 542; Liberty Mining Co. v. Geddes, 11 Ariz. 54, 90 Pac. 332; Kinsley v. New Vulture Mng. Co., 11 Ariz. 66-70, 90 Pac. 438, 110 Pac. 1135; Meade v. De Mund, 108 Pac. 479; Phoenix Ry. Co. v. Landis, 108 Pac. 247.

The defendant demurred specially upon the ground that the complaint failed to give the Christian name of the plaintiff, and assigns the overruling of the same as error. The practice of using initials, instead of the Christian name, in pleadings, though not commendable, is, we think, permissible under the weight of modern authority; but in this jurisdiction the question, not constituting a statutory ground of demurrer, can be raised by motion only.

The assignment that the evidence is insufficient to sustain the judgment cannot be considered, for the reason that the abstract of record does not contain any of the evidence.

Error is predicated upon the overruling of defendant's general demurrer. While it is averred in the complaint that the plaintiff sell the property in question, to allege authorwas authorized to procure a purchaser and ization is not equivalent to the allegation of a request, and no facts are pleaded from which it can be inferred that plaintiff was either employed or promised compensation by defendant.

The judgment of the district court is re versed, and the case remanded, with direc tions to sustain the demurrer.

KENT, C. J., and CAMPBELL, J., concur. DOAN, J., concurs in the result.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

courts

*

be transferred to the proper courts of said | offered by the plaintiff; that the court erred county of Santa Cruz for trial, * * and in overruling defendants' motion for new it is hereby made the duty of the respec- trial and in arrest of judgment, enumerated tive clerks * of the county of Pima, and defined in folios 87 to 91, inclusive, of *** to transmit to the clerks of the the abstract of record in this case; that the corresponding courts in said county of Santa court erred in permitting and accepting inCruz, all papers and files in said action, competent and irrelevant evidence, documenwhere the title to real estate is tary and oral, offered by the plaintiff in this not involved, and in all actions pending in case. These assignments are too general to said courts in said county of Pima, wherein present any question for review. Liberty one of the parties is a resident of said county Mining & Smelting Co. v. Geddes, 11 Ariz. of Santa Cruz, both parties consenting there- 54, 90 Pac. 332. It further appears that a to. * It * is hereby made consideration of these assignments requires the duty of the clerks of the said respective an investigation of the evidence introduced * to transmit to the clerk of on the trial, which is not printed in the abthe proper court of Santa Cruz county, all stract of record. We have repeatedly held papers and pleadings in said action: that, where the abstract of record fails to Provided, however, that in all civil actions contain the evidence, we will not examine it shall not be the duty of such clerk to the original transcript of the reporter's notes make such copy or transmit such papers un- for the purpose of ascertaining whether ertil his fees and compensation allowed there- ror exists. Subd. 6, rule 1 (8 Ariz. v, 71 Pac. fore by this act, shall have been paid or ten- | vi); Liberty Mining & Smelting Co. v. Geddes, dered him, nor until all costs due such clerk | supra; Daniel et al. v. Gallagher, 11 Ariz. and the sheriff of said county of Pima, up to the time of the transfer, have been duly paid by the parties thereto or by one of them. In all actions transferred under the provisions of this act, upon the receipt by the clerk of the proper court of Santa Cruz county of such papers and pleadings and such certified copies of the record in such action or actions so transferred, the court to which the same is transferred shall acquire and become vested with the same jurisdiction as if the said action had been originally commenced in the said court in and for the county of Santa Cruz."

This section is directory. The district court of Pima county retains jurisdiction of actions commenced therein until the provisions of this section have been fully complied with. Then, and then only, does jurisdiction vest in the courts of Santa Cruz County and cease to exist in the courts of Pima county. There are no facts alleged in paragraph 3 which disclose that the district court of the county of Santa Cruz ever acquired jurisdiction; hence the district court of Pima county had authority to hear and determine the cause and enter the judgment pleaded. The motion of the appellants to strike paragraph 3 of the complaint was properly overruled.

The second assignment of error is that the court erred in overruling the general demurrer to the complaint. An examination of the complaint discloses that it contains the necessary allegations under our statute to constitute a sufficient complaint in eject. ment. The general demurrer was properly overruled.

151, 89 Pac. 412; Donahoe v. El Paso, etc., Ry. Co., 11 Ariz. 293, 94 Pac. 1091; Phoenix Ry. Co. v. Landis, 108 Pac. 247.

The errors here considered are those assigned in the brief of appellants filed on the 9th day of November, 1910. To this brief the appellee replied. Subsequently and upon the 13th day of January, 1911, five days after the opening of the term at which the case was argued and submitted, the appellants filed a supplemental brief, in which two additional grounds of error are assigned. This brief was filed without leave of the court, and to it no reply has been made by the appellee. The practice of filing such supplemental brief and therein assigning additional error is not contemplated by the statutes, nor by the rules of this court. We therefore do not consider the assignments thus alleged.

No error appearing upon the record as presented, the judgment of the trial court is affirmed.

KENT, C. J., and CAMPBELL and DOE, JJ., concur.

(13 Ariz. 291)

ARIZONA POWER CO. v. KELLAM. (Supreme Court of Arizona. March 25, 1911.) 1. CORPORATIONS (§ 432*) — ACT OF AGENTAUTHORITY-EVIDENCE-SUFFICIENCY.

Where, in an action against a corporation for the use of a freighting outfit, the answer admitted the hiring of the outfit and defendant's manager, and plaintiff testified to the hiring, the conflict in the testimony being as to the terms of the contract, a contention that a verdict for plaintiff was not authorized on the to bind defendant was of no merit. ground that there was no evidence of authority

The remaining assignments of error are as follows: That the court erred in overruling the defendants' motion for judgment in their favor at the conclusion of all the testimony *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 114 P.-36

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 432.*]

In an action against a corporation on a contract, whereby it hired a freighting outfit from plaintiff, there was evidence that defend ant's manager who contracted for defendant instructed defendant's team superintendent to value the outfit, and that he instructed defendant's timekeeper to make a memorandum of the outfit. Held, that a memorandum made by the timekeeper, showing, among other things, a certain chain claimed by plaintiff not to have been returned as required by the contract, was admissible as against the objection that the team superintendent had no authority to bind the company.

[Ed. Note.-For other cases, see Evidence, Dec. Dig. § 244.*]

3. TRIAL (§ 85*)-OBJECTIONS TO EVIDENCE

EVIDENCE ADMISSIBLE IN PART.

Where a document is in part relevant and material and competent evidence but contains other matter not competent, the attention of the trial court must be directed to the incompetent part before error can be predicated on the admission of the document as a whole.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. § 85.*]

4. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

2. EVIDENCE (§ 244*)ADMISSIBILITY-Docu- contract for the use of the freighting outfit MENTARY EVIDENCE. should continue until terminated upon notice by either party and until the expiration of 30 days after the giving of such notice; that it was also agreed and understood that, in case any of the horses so hired should die or be killed while employed under the contract, the defendant should pay the plaintiff the sum of $165 per head for each horse; that, with the exception above noted, the freighting outfit should be returned to the plaintiff at the expiration of its service in as good order and condition as when received, and, in case any part thereof should be lost or destroyed, it should be replaced by the defendant or paid for at its just and reasonable value. The complaint further alleged that during the pendency of the contract one of the horses died, and that the defendant was indebted to the plaintiff in the sum of $165, the agreed value of said horse, and was further indebted to the plaintiff for various sums for the use of said freighting outfit as agreed upon by the parties, including the use of the wagon, for repairs, and for a chain that was not returned with the outfit; and prayed judgment for the sum of $539.99. The defendant answered, admitting that it had rented of the plaintiff a freighting outfit, for which it was to pay a certain amount per month for the horses and for a wagon for such time as the same was used by the defendant; denied that the contract was to be terminated on 30 days' notice; denied that it was agreed that the defendant should pay the plaintiff the sum of $165 per head for any horses that should die or be killed, or that there was any contract in existence at the time when the plaintiff's horse died whereby the defendant was to pay $165 for the same, or any other sum; alleged that the death of the horse was owing to the negligence or carelessness of the plaintiff or his agents, and denied that the defendant was indebted to the plaintiff in any sum for the said horse; denied that the freighting outfit was to be returned at the expiration of its service in as good condition as when receiv

Though a document was improperly admitted, it was harmless where it was merely cumulative evidence of an undisputed fact.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4161-4170; Dec. Dig. § 1051.*]

5. CONTRACTS (§ 346*)-PLEADING EVIDENCE -ADMISSIBILITY UNDER PLEADINGS.

In an action against a corporation on a contract for the hiring of a freighting outfit belonging to plaintiff, the answer admitted an agreement for the use of the outfit, and denied that there was any contract in existence between plaintiff and defendant "at the time plaintiff's horses died as alleged in the complaint whereby defendant was to pay" anything for the same. Held that, under the answer, evidence was not admissible to show that the con

tract had terminated prior to the time when one of the horses died.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1718-1753; Dec. Dig. § 346.*] Appeal from District Court, Yavapai County; before Justice Doe.

Action by J. A. Kellam against the Arizona Power Company. From a judgment in favor of plaintiff and from an order denying a motion for new trial, defendant ap-ed, or that the defendant was to replace any peals. Affirmed.

Le Roy Anderson, for appellant. E. S. Clark and J. E. Russell, for appellee.

part lost or destroyed. The answer admitted that the defendant had used a certain number of horses for a certain length of time and the wagon for a certain length of time as therein specified; admitted that it owed the plaintiff the sum of $302 for the use thereof, but no more, and tendered the said $302 in full satisfaction of its debt; denied that it was responsible for the condition of the wagon or for the repairs thereon, or responsible for the loss of the chain claimed by the plaintiff. The case was tried to a jury and a verdict rendered for the full amount of the plaintiff's claim, upon which verdict judg ment was entered. From this judgment and an order denying a motion for a new trial

KENT, C. J. The complaint of Kellam alleged that the plaintiff at the special instance and request of the defendant delivered and turned over to the defendant a certain freighting outfit which was accepted by the defendant as in good order and condition, and that the defendant agreed to pay the plaintiff for the use of the freighting outfit at certain specified rates for each span of horses and for a wagon so delivered. The complaint further alleged that it was agreed between plaintiff and defendant that the the defendant has appealed.