swer as an affirmative defense are sufficient to avoid the statute of frauds. In support of the contention counsel cites cases where, under particular facts proved in those cases, there was no surrender, and that a parol executory agreement to surrender demised premises will not be enforced. We have not held anything to the contrary. Counsel seems to misconceive the purport and effect of the decision. In view of this we have deemed it best to add a few words to what is said in the original opinion. ence of respondent, and at his special instance | ing that the averments contained in the anand request, and that he then and there released appellant from his lease on said premises, and from any obligations thereunder, and that, in pursuance thereof, appellant put Cook into possession of the premises. Now if these claims are well founded, they constitute a good defense to respondent's alleged cause of action. We know of no rule of law, or principle of equity, under which a party may recover damages for an act or omission which he himself induced or assented to. It is a familiar maxim that "volenti non fit injuria." That is to say, what a person assents to or induces to be done he cannot afterwards complain of as an injury. Respondent, however, contends that the special defense interposed by appellant was insufficient because it was based upon an alleged transaction which, even if it actually occurred, was nothing more than an attempt, on the part of respondent, to surrender an interest in land by parol, which, under the statute of frauds, was a nullity. While it is settled law that no interest in land can be created, transferred, or surrendered by merely a parol executory agreement, it is also equally well settled that a contract for the sale or leasing of real estate may be rescinded by parol. "Such rescission may be effected, not only by an express agreement, but by any course of conduct clearly indicating a mutual assent to the termination or abandonment of the contract." 2 Warvelle, Vendors (2d Ed.) § 826. A question involving this same principle of law was raised in the case of Cutwright v. Union Savings & Inv. Co., 33 Utah, 486, 94 Pac. 984, and this court held, in an opinion written by Mr. Justice Frick, that an executed parol agreement to rescind a contract for the sale of land, where the vendee has surrendered, and the vendor has gone into, possession of the premises covered by the original contract, is not void under the statute of frauds. The question here involved is elaborately discused in the opinion, and many cases are cited in support of the doctrine therein announced. The objection that the transaction pleaded as a special defense is void under the statute of frauds must be overruled. If The question before us was not whether the facts adduced at the trial of a case involving a surrender by parol was sufficient, or not sufficient, to constitute a surrender. Nor did we hold that a parol executory agreement to surrender may be enforced, but what we held is that an executed agreement to surrender, although by parol, may be sufficient. The only question for determination was whether the averments contained in the answer, which are stated in the opinion, are broad enough to admit proof of an executed agreement to surrender the demised premises. If the agreement to surrender is shown to have been fully executed by both parties, neither one of them can thereafter claim that the agreement was unenforceable because within the statute of frauds. In such event nothing is enforced, except what the parties themselves willingly agreed to and as willingly performed. the surrender was complete, and made with the consent of both parties, the law does not concern itself with the manner in which it was effected. It is only when an agreement which the law requires to be evidenced by a writing is sought to be enforced that the law does not authorize its enforcement, unless established in accordance with legal requirements. The affirmative defense set up in the answer contains averments which partake of both the elements of an estoppel and an executed agreement to surrender. While we entertain serious doubt as to whether the facts alleged are sufficient, as they now stand, to constitute an estoppel, still it is apparent that the statement in this regard could be cured by a We are of the opinion that, under all the more specific statement. Upon the other circumstances, the court should have set hand, we are quite clear that the facts aside the default, vacated the judgment, and pleaded are sufficient to admit evidence permitted appellant to answer to the merits. showing an executed agreement and a surThe case is therefore reversed, with direc- render of the demised premises. The antions to the trial court to set aside the de-swer, therefore, states at least one good default, vacate the judgment, and permit appel-fense. lant to answer to the merits on such terms The case of Ogden v. Sanderson, 3 E. D. as the court may deem just; appellant to Smith (N. Y.) 166, which counsel for rerecover costs of this appeal. STRAUP and FRICK, JJ., concur. On Rehearing. FRICK, J. Respondent has filed an application for a rehearing, in which it is strenuously insisted that we erred in hold spondent insists is decisive of the question in his favor is, in our judgment, just to the contrary. While the facts with regard to a parol agreement of surrender in that case are exactly parallel with the facts in this case, the decision, however, squarely rests upon the fact that the agreement there in question was never executed. The court, at cumstances * page 169, in speaking of the negotiations, says: "All these negotiations, however, appear to have failed." Further, in speaking of what constitutes an eviction, it is said. "An eviction of a tenant is an interference with his possession of the premises, or some part thereof, by or with the consent of the landlord, by which the tenant is deprived of the use without his consent; but, where the tenant is present at a negotiation to relet the premises to a third person and does not object, but at the same time is proposing a surrender on his own part, a possession by such third person, under such circould hardly be considered an eviction." It is true that the court in that case held that there was no surrender because, as it said, "no surrender is proven. A proposed surrender was talked of, but not executed, and this lease could only be surrendered by writing or by operation of law." If possession of leased premises is surrendered by the tenant and accepted by the landlord, it constitutes a surrender by operation of law. This is the effect of the holding in the original opinion. If, therefore, appellant can establish the fact that the agreement to surrender was fully executed with the consent of both parties, then he has a good defense to the action. This proof, we think, is admissible as the answer now stands. But if the averments are not deemed sufficiently specific, respondent has a remedy by special demurrer. As against a general demurrer (which the objection in this case, in effect, is), in view of the liberal construction that our statute requires to be given to pleadings, we think the averments are sufficient. The application for a rehearing, therefore, is de nied. its findings and conclusions on other evidence, which may have been sufficient to support them. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2907; Dec. Dig. § 683.*1 3. APPEAL AND ERROR (§ 907*) - REVIEW TRIAL BY COURT-FAILURE TO CERTIFY EVIDENCE-PRESUMPTIONS. Where trial was to the court, and all the evidence is not certified to the Supreme Court on appeal, it will be presumed that there was sufficient evidence to support the findings, and that they are correct. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2911, 3673; Dec. Dig. § 907.*] 4. ESTOPPEL (§ 75*)-CLOTHING PERSON WITH APPARENT TITLE-ISSUE OF STOCK CERTIFICATE RIGHTS OF THIRD PERSONS. Where a corporation issues a stock certificate to a person, it thereby holds out to all who may undertake to deal with it that the person is the owner thereof, and has the capacity to transfer it. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 193; Dec. Dig. § 75.*] 5. CORPORATIONS (§ 131*)-CAPITAL STOCKTRANSFER OF SHARES-PRIMA FACIE RIGHT OF HOLDER. Where a person presents a stock certificate, with a proper assignment duly signed by the person to whom it was issued by the corporation, the assignee has at least the prima facie legal right to have the stock transferred in his name on the corporation books, so that he may enjoy the full benefits of a stockholder of record. Cent. Dig. § 490; Dec. Dig. § 131.*] [Ed. Note. For other cases, see Corporations, 6. CORPORATIONS (§ 130*)-CAPITAL STOCKTRANSFER OF SHARES-RIGHT OF CORPORATION TO QUESTION. A corporation cannot inquire into and pass upon the motives of the assignor and assignee of shares of its stock which induce a transfer thereof, nor can it ordinarily inquire into and pass upon the legality of the transaction by which the shares are transferred from one to another, nor question the consideration for the transfer. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 488, 489; Dec. Dig. § 130.*] STRAUP, C. J., and MCCARTY, J., concur. 7. CORPORATIONS (§ 130*)-CAPITAL STOCK TRANSFER OF SHARES-RIGHT OF COrporaTION TO INTERFERE. If a corporation has some claim upon a certificate of its stock sought to be transferred, or some rights against the assignor that would, or might, be affected or lost by the transfer, or if it is notified by a third person not to transfer the stock, upon the ground that he claims some interest in it which would, or might be, lost by making the transfer, the corporation may refuse to make the transfer. Cent. Dig. § 489; Dec. Dig. § 130.*] [Ed. Note. For other cases, see Corporations, Appeal from District Court, Second District; J. A. Howell, Judge. Action by Herman Mundt against the Commercial National Bank of Ogden and another. Judgment for plaintiff, and defendant bank appeals. Affirmed. A. B. Heywood, for appellant. E. T. Hulaniski, for respondent. FRICK, J. This is an action in equity to compel the transfer of stock. Respondent in his complaint, after stating the corporate ca We er evidence in the case which may be suffi- But apart from all this, in view of the allegations contained in the complaint, the appellant presented no adequate defense for its refusal to transfer the stock as requested by respondent. When the appellant issued the original stock certificate to Mr. Dawson, it thereby held out to all who might undertake to deal with it that he was the owner thereof, and had the capacity to transfer the same. pacity and the business of appellant, in substance, alleged that on a day named, for a valuable consideration, he purchased and then became, and at the time of the commencement of the action was, the owner and holder of 10 shares of the capital stock of the appellant, evidenced by certificate No. 220, which had been duly issued by appellant to one George Dawson, and had by him been sold, assigned, and delivered to respondent; that respondent, before bringing this action, presented said certificate, together with the evidence of his ownership, to the appellant, and requested that it transfer the stock upon its books, and issue to him a new certificate in his name for said 10 shares of stock; that said appellant, without cause therefor, refused, and still refuses, to transfer said stock on its books, or to issue a new certificate as requested; that said stock is dividend paying stock, and is valuable as an investment, and that an action at law for damages would not afford the respondent an adequate remedy. The appellant answered the complaint, and, in effect, denied that the respondent was the owner of said stock, and averred that the George Dawson mentioned in the complaint was a Holbrook v. N. J. Zink Co., 57 N. Y. necessary party to the action, and asked that 616. When any person, therefore, presented he be made a party thereto. The court or- the certificate, with a proper assignment duly dered Dawson to be made a party, which signed by the person to whom it was issued was done. Dawson, however, made default, by the appellant, the assignee had at least and made no claim to any right or interest in the prima facie legal right to have the or to the stock in question, nor did the ap stock transferred in his name on the books pellant, or any one else, make any claim of appellant, so that he might enjoy the full thereto, nor was it averred in the answer benefits of a stockholder of record. The apthat appellant, or any one else, had any claim pellant had no right, except for good cause, or right in or to said stock. After a hearing to refuse to transfer the stock on its books upon the issues presented the court made and by such refusal deprive the assignee of findings in which it substantially found the his rights as a stockholder. Mr. Justice facts as alleged in the complaint, and en- Field, in Johnston v. Laflin, 103 U. S. 803, tered judgment or decree requiring appellant 26 L. Ed. 532, says: "Shares in the capital to transfer said stock upon its books in the stock of associations, under the national name of respondent, and to issue to him a banking law, are salable and transferable at new certificate therefor. From the judg- the will of the owner. * * The statute ment appellant prosecutes this appeal. recognizes this transferability, although it In the bill of exceptions nothing is con-authorizes every association to prescribe the tained except a certain deposition, and the only error assigned with respect to it is that the court erred in admitting it in evidence, for the reason that the witness did not answer certain cross-interrogatories propounded to him by appellant. The interrogatories were in fact answered by the witness, at least in a general way, and the mere fact that the answers were not deemed sufficiently specific by appellant, in our judgment, would not authorize the exclusion of the entire deposition as evidence. Besides all this, the questions propounded were neither material nor relevant to any material issue. Moreover, the trial was to the court, and all the evidence heard by it is not certified to this court. It may be that the court disregarded the particular questions and answers, or, for ought that is made to appear, it may have disregarded the whole deposition, and based its findings and conclusions on the oth manner of their transfer. Its power in that respect, however, can only go to the extent of prescribing conditions essential to the protection of the association against fraudulent transfers, or such as may be designed to evade the just responsibility of the stockholder. It is to be exercised reasonably. Under the pretense of prescribing the manner of the transfer the association cannot clog the transfer with useless restrictions, or make it dependent upon the consent of the directors or other stockholders." Nor can the corporation set itself up as the judge, and inquire into and pass upon the motives of the assignor and assignee which induced the transfer, nor can it ordinarily inquire into or pass upon the legality of the transaction by which the shares are transferred from one to the other, nor question the consideration upon which the transfer is based. Miller v. Houston City St. Ry. Co., 5 C. C. A. 134, 55 when it has reasonable ground for so doing, but it must act in good faith, and present some adequate reason for refusing to make a transfer, and support it by some evidence. The judgment is affirmed, with costs to respondent. Fed. 366; Helm v. Swiggett, 12 Ind. 194; | negligence in making transfers; and hence In re Klaus, 67 Wis. 401, 29 N. W. 582. In it may always refuse to make a transfer the last case cited, in referring to the officer whose duty it is to make the transfer for the corporation upon its books, Mr. Justice Orton, at page 403 of 67 Wis., at page 583 of 29 N. W., says: "His duties are purely ministerial and clerical in entering upon the books transfers of stock. He certainly has not the judicial power to pass upon the motives and intention of the parties to the assignment of stock." If the corporation has some claim upon the stock, or some rights against the assignor that would or might be affected or lost by the transfer, or if it is notified by some third person not to transfer the stock upon the ground that he claims some interest in it which would, or might be, lost by making the transfer, then it may refuse to make the transfer; but when it is called into court because of such refusal, it should present these matters as a defense, and not rely merely upon a denial of ownership for want of knowledge, or upon an averment, upon information and belief, that the assignee is not the true owner, or that the transfer between the assignor and the assignee was made in bad faith and for an ulterior purpose. The motives which actuate the parties in making the transfer of the stock, or the consideration passing between them, are entirely immaterial so long as no one claims any rights to, or interest in, the stock asked to be transferred, and where it is not made to appear that the transfer is asked to evade some legal responsibility of the stockholder. If the rights claimed by appellant to interfere in stock transfers were allowed, then it would logically follow that corporations are quasi guardians, with power to pass upon the acts, not only of all of their stockholders, but also upon the acts of those who desire to become such, where such acts relate to the sale and transfer of capital stock of the corporations. If this power be once granted to corporations, then they must likewise assume the corresponding duty of guarding all the interests of the stockholders, and refuse to transfer any stock so long as the corporate officers think it was sold for an inadequate consideration, or was parted with by virtue of some transaction which they think illegal, or not made in good faith, and for all other defects in the title, known or unknown to them, which might ultimately be questioned by the assignor himself, or by some one claiming an interest in the stock. No such duty is imposed upon corporate officers, and it would be wholly impractical if it were imposed by law. Tafft v. Presidio & Ferries Co. (Cal.) 22 Pac. 487. The corporation should at all times guard its own interests, as well as those of its stockholders in making transfers, and it must exercise ordinary care in doing so. It is liable for STRAUP, C. J., and MCCARTY, J., con cur. (35 Utah, 105) STATE v. JUSTESEN. (Supreme Court of Utah. Jan. 12, 1909.) 1. PERJURY (§ 32*) — EVIDENCE - RECORD OF CAUSE IN WHICH PERJURY WAS COMMITTED -ADMISSIBILITY. On a trial for perjury the record of the cause in which the alleged perjury was committed is admissible to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the alleged perjured testimony, but the record cannot be considered as proof of perjury. [Ed. Note.-For other cases, see Perjury, Cent. Dig. § 110; Dec. Dig. § 32.*] 2. PERJURY (§ 37*) - EVIDENCE - INSTRUC TIONS. The court on a trial for perjury must charge that the record of the cause in which the perjury was committed was received in evidence only to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the perjured testimony. Cent. Dig. § 137; Dec. Dig. § 37.*] [Ed. Note.-For other cases, see Perjury, 3. CRIMINAL LAW (§ 1169*)-HARMLESS ERROR-ERRONEOUS ADMISSION OF EVIDENCE. On a trial for subornation of perjury, the error in receiving in evidence the demurrers to the complaint and answer in the action in which the perjury was committed was not prejudicial to accused. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. § 1169.*] 4. CRIMINAL LAW (§ 1169*)-HARMLESS ERROR -ERRONEOUS ADMISSION OF EVIDENCE. The admission of immaterial evidence is no ground for reversal of a judgment of conviction, dice the rights of accused. unless the evidence tends in some way to preju [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. § 1169.*] 5. PERJURY (§ 16*)-SUBORNATION OF PERJURY-NATURE OF OFFENSES. Perjury and subornation of perjury are separate and distinct offenses, and one charged with subornation of perjury is not an accessory of the one committing the perjury. [Ed. Note.-For other cases, see Perjury, Dec. Dig. § 16.*] 6. CRIMINAL LAW ($ 528*)-EVIDENCE-ACTS OF CONSPIRATORS-ADMISSIBILITY. Where two or more persons conspire together to commit a crime, and either accomplish or abandon their design, no one of them can by a subsequent act or declaration affect his coconspirator, and his confession subsequently made, though by the plea of guilty, is not admissible in evidence as such against the co-conspirator. 1 [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 528.*1 For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 7. PERJURY (§ 32*) — SuborNATION OF PER- | Peter Nielson never at any time or place had JURY-EVIDENCE-ADMISSIBILITY. On a trial for subornation of perjury, the record of the plea of guilty of perjury by the person alleged to have been procured to commit the perjury is inadmissible. any conversation whatever with the said Larson in relation to said matter, and never at any time or at all offered to give Larson $500, or any sum, or anything, if he Larson, [Ed. Note.-For other cases, see Perjury, Dec. would testify that Alexander Justesen told Dig. § 32.*] Appeal from District Court, Seventh trict; Ferdinand Erickson, Judge. Alexander Justesen was convicted of subornation of perjury, and he appeals. Reversed and remanded for a new trial. him that he would tear up the notes mentioned. As a part of the state's case, the disDistrict attorney introduced in evidence the pleading and certain minute entries in the case of Jacob Johnson v Niels Peter Nielson, in which case it is claimed the alleged perjury was committed. Defendant objected to the admission in evidence of the defendant's demurrer to the complaint and plaintiff's demurrer to the answer in said action on the ground that the demurrers were incompetent and irrelevant, and did not tend to prove any fact at issue in the case at bar. The action of the court in overruling the objection is assigned as error. Jacob Johnson and G. A. Iverson, for appellant. M. A. Breeden, Atty. Gen., for the State. MCCARTY, J. The appellant was convicted of the crime of subornation of perjury. The information, so far as material here, alleged that on and prior to the 4th day of June, 1907, a certain action was pending beThe authorities uniformly hold that in a fore the district court of Sanpete county, trial for perjury the record of the case in this state, wherein one Jacob Johnson was which it is alleged the perjury was commitplaintiff and one Niels Peter Nielson was ted is admissible in evidence for the purpose defendant, "and in which case the issues of showing the jurisdiction of the court, the were as to whether certain notes executed regularity of the proceedings, and the mateby the said Niels Peter Nielson to the order riality of the alleged perjured testimony and of Alexander Justesen, the defendant herein, that it is the duty of the court to so limit But under no circumand to him, the said Alexander Justesen, de- and restrict its use. livered, were fraudulently retained and sold stances can the record be considered by the by the said Alexander Justesen, and whether jury as proof of perjury. The following are the purchaser of the said notes from the a few of the many authorities that adhere said Alexander Justesen, viz., Jacob Johnson, to this doctrine: Wharton, Crim. Ev. 602; was a purchaser in good faith, and without Underhill, Crim. Ev. p. 52; 9 Ency. Ev. 758; notice of anything that would vitiate the State v. Brown, 111 La. 171, 35 South. 501; said notes in the hands of the said Alexander People v. Macard, 109 Mich. 628, 67 N. W. Justesen. * That on or about the 7th 968; Smith v. State, 103 Ala. 57, 15 South. day of June, 1907, at Manti, Sanpete county, 866; Higgenbotham v. State, 24 Tex. App. state of Utah, * at a term of said. 505, 6 S. W. 201. And, while it may be concourt, the said cause and issue came on to be ceded that the demurrers referred to preand was tried before said court in sented no issue upon which a charge of perjury could be predicated, and were therefore wholly irrelevant to any issue in the case and should have been excluded, yet we fail to see in what way the admission of them in evidence prejudiced the defendant. The admission of the immaterial evidence, unless it in some way tends to prejudice the rights of the party litigant against whom it is offered, is no ground for reversing a judgment. This rule has so often been declared that we deem it unnecessary to cite authorities in support of it. * said cause between the said Jacob Johnson as plaintiff and Niels Peter Nielson as defendant," and that the said Alexander Justesen did suborn and procure one James Larson to then and there swear falsely in said cause, as follows: "Mr. Nielson [meaning thereby Niels Peter Nielson] called me off to one side, by the fence. He [meaning thereby the said Niels Peter Nielson] says, (addressing him, the said Larson): 'Are you a friend of Mrs. Justesen?' I says: 'Yes, sir.' 'Well,' he says, 'she is a witness of mine here.' He said: 'Do you want to make some easy money?' I says: 'According to what it is.' 'Well,' he says, 'I will give you $500 if you will get up and swear that Alexander Justesen told you he would tear my notes up.' I says: 'I wouldn't do nothing of the kind for you nor no other man.' That is all the conversation I had with him." It objections being made by defendant's counis further alleged that both James Larson sel to the admission of this evidence, the and Alexander Justesen knew that said tes- district attorney, in the presence and heartimony was false, and that the said Nielsing of the jury, addressed the court as folFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes The next assignment of error presents a more serious question. The district attorney offered in evidence the information in the case of the State of Utah v. James Larson, wherein Larson is charged with the same perjury upon which the defendant is charged with having procured or suborned. Upon |