to entering into the contract of sale as a part of the lands due the state under the grant contained in the enabling act. The selection of lands by the state, within which the lands in question were included. was filed in the United States land office on May 27, 1902, and approved by said office June 9, · 1902. Thereafter, on September 27, 1906, the lands in question, selected by the state as aforesaid, were rejected by the Secretary of the Interior at Washington, which rejection was indorsed on the back of the contract in question. Both the state of Utah and the respondent consented to the rejection, and the state returned to him the money deposited by him, and he received it and relinquished his right to the land. The precise time at which the state and respond ent were apprised of the action of the Secretary of the Interior does not appear, but it was some time after the 27th of September, 1906. In view of the foregoing it is urged that the contract was inadmissible as evidence as showing respondent's rights to the land in question, for the reason that no rights were or could have been conferred by the contract. It is asserted that since the selection made by the state was rejected by the Secretary of the Interior, the state never had any right or title to the land, and if the state had none it could confer none. It will be observed that the selection made by the state was approved by the local land of fice June 9, 1902, and that respondent went into possession under a contract from the state. The state, therefore, was acting un der a selection made by it which had been duly filed and approved by the local land office. In a very recent case, entitled Brigham City v. Rich, 97 Pac. 220, we held that a grant to the state of Utah under the enabling act was a grant in præsenti; that a selection duly made by the state and filed and approved by the Secretary of the In that it could agree to sell them to one desiring to purchase unless the lands were mineral lands. There is no claim that the lands in question were such, nor is it contended that the selection made by the state was rejected for that reason. From anything that is made to appear, therefore, the state could have insisted upon its right to the land in question, and the respondent could likewise have done so. The mere fact that the state and the respondent acquiesced in the action of the Secretary of the Interior, whether such action was well founded or not, can make no difference so far as the appellant is concerned. The respondent had the exclusive right to the possession of the land until the selection made by the state was canceled with its consent, and until respondent acquiesced in the cancellation of the contract and surrendered up possession. But we think the respondent had the right of possession as against the appellant, who was a mere intruder, upon still another ground. Under the enabling act the state certainly had the exclusive right to select unoccupied and unclaimed nonmineral lands. The right of selection carried with it the right to take possession and to continue in such possession, at least until some one with a better right claimed the lands, or until they were found to be mineral in character. If the state had this right, it could transfer the right of possession to another, and the person who obtained it would certainly have the right to exclude mere intruders who had no right in or to the land whatever. The right of possession would continue until the United States insisted upon its higher right, that of true owner. As against appellant, therefore, who was a mere intruder without any rights, the respondent's rights must prevail. Our conclusion, therefore, is that the court did not err in admitting in evidence the land contract as evidence of respondent's right of possession as against appellant. terior vested the title in the state of Utah The next assignment to be noticed refers from the date of the approval of the enabling to the admission of certain evidence, over act. We further in effect held that, if the the objection of appellant, with regard to lands selected by the state were not min- particular items of damages which responderal and were located within the state of ent claims to have sustained by reason of Utah, the Secretary of the Interior was pow- the wrongful acts complained of in the first erless to defeat the rights of the state, because of action. In the complaint the only cause the grant was not dependent upon his allegation with regard to the damages susact of approval. In other words, the refusal tained by respondent is that, by reason of of the Secretary of the Interior to make the the mingling of the buck sheep with the approval did not necessarily affect the pass-ewes, "about 234 head became pregnant with ing of title, but his approval was evidence of the facts that the lands were of the character designated in the enabling act and were subject to the grant; if, therefore, the selected lands in fact were of the character granted in the enabling act that then the Secretary could not, by a mere rejection, defeat the rights of the state, since the enabling act conferred no such power upon him. If our conclusions in that case are sound, it follows that the state of Utah acquired such a right in the lands in question lamb and in consequence thereof they brought forth lambs of an inferior quality and in an unseasonable period, late or premature." Counsel for appellant at the proper time and in the proper way, by special demurrer, made objections to the generality of this allegation, and asked that it be made more specific and certain. Respondent's counsel, however, resisted the demurrer, and the court overruled it. At the trial, after proving the usual period of gestation for sheep, the respondent, under the foregoing allegation, offered evidence to prove that merely what are general and what are spethe respondent had employed extra men to cial damages, but it is rather whether a take care of the ewes and lambs during the party may extend the evidence beyond the time the ewes dropped their lambs, which scope of his allegations. We are clearly of was during the months of January, Febru- the opinion that the court permitted this ary, and March; that 96 head of the lambs to be done in this case. The general rule died; that respondent had expended cer- no doubt is that all the consequences that tain sums of money to purchase lumber to necessarily and ordinarily flow from the build sheds for the protection of the ewes wrongful act or acts described in the comand lambs, and had purchased hay and plaint may be proved under a general allestraw to feed and bed them during the gation of damages, and that consequences lambing season and for some time thereaft- which are the natural but not the necessary er; that all of the foregoing items of ex- and ordinary result of such act or acts must penses were necessarily incurred by reason be specially alleged in order to entitle the of the wrongful mingling of the buck sheep complaining party to prove them at the trial. with the ewes, which caused them to give The cases of Croco v. O. S. L. Ry. Co., 18 birth to lambs at an unseasonable period Utah, 311, 54 Pac. 985, 44 L. R. A. 285, and within which special or extra protection, North Point Irr. Co. v. Canal Co., 23 Utah, care, attention, and feed had to be provided 199, 63 Pac. 812, cited by counsel for refor the ewes and lambs. The objection to spondent, while containing expressions from the evidence is not based upon the ground which an inference might be drawn that it that the matters claimed above are not prop- was intended to lay down a different rule, is er items of damages, but the objection was, more apparent than real. In both of those and the contention now is, that the evidence cases general and special damages are recogin that regard was not relevant to the is- nized, and the rule that special damages sues presented by the pleadings, and hence must be pleaded is adhered to. If, therenot admissible. It may be that respondent fore, those cases should be construed as is not entitled to the first cost of the lumber holding, as contended by respondent's counpurchased by him as his measure of dam- sel, that all consequences which are traceages, but this question is not presented, and able to the wrongful act or acts stated in we express no opinion upon it. The only the complaint can be proved under a genallegation in the first cause of action with eral allegation of damages, then it would regard to the damages is that the ewes have been needless to state that special brought forth lambs of an inferior quality damages must be alleged if it is desired to at an unseasonable period. The natural and recover them. All damages, whether genobvious inference to be deduced from this eral or special, must be directly traceable to statement is that the lambs were of inferior the wrongs complained of. The only differquality and hence of less value than lambs ence between general and special damages of a better quality. That they were born in is that the former are the necessary and an unseasonable period no doubt may affect usual result of the acts described in the their quality and hence their value. Noth- complaint, while the latter need not be so, ing is stated that any of them died by rea- but must only be the proximate result of son of their unseasonable birth, nor is there and traceable to such act or acts. In every any allegation that the respondent suffered pleading the opposite party is entitled to noany damage or inconvenience by reason of tice of what the proof will be directed to, any effect the unseasonable birth of the and this notice must appear from the pleadlambs had upon the ewes, nor that they re- ing. This principle is well illustrated in the quired any special care or attention. If we recent case of Pugmire v. O. S. L. Ry. Co., assume that respondent is entitled to recover 33 Utah, 27, 92 Pac. 762, 13 L. R. A. (N. S.) for all these matters as traceable to the 565. A party seeking to recover damages wrongs complained of, still he cannot re- for the wrongful acts of another must ordicover for such matters when he has express- narily set forth the wrongful act or acts ly confined his allegations for damages to and describe the injury sustained, whether the inferior quality of the lambs because to person or property, and all the conseborn at an unseasonable period. It is not quences which necessarily and usually result even intimated that the lambs were inferior from the acts and injuries set forth and debecause of the inferior grade or quality of scribed may be proven as general damages. the bucks, but the only inference is that the If, however, a recovery is sought for conselambs were of inferior quality because they quences that are not the necessary and usual were conceived and born at an unseasonable result of the acts and injuries set forth and period. While the objection may be good described, then such consequences must be that the damages referred to above are spe- pleaded, and the damages that arise therecial, and therefore, in order to admit the from are denominated special damages. Of evidence, should have been specially alleged, the necessary and usual consequences the still the broader objection that the evidence opposite party has notice because they necwas not admissible because of the restrict-essarily arise, but of those that do not so ed allegation with regard to damages is cer- arise he must have notice because they may prove such fact. But we cannot see anything in this letter which, when applied to the evidence as it now stands, makes it admissible for any purpose. We are of the opinion, therefore, that, in view of the record, the court erred in admitting the evidence. A jury is very apt to seize upon such an offer as an admission of liability upon the part of one making it, when the law does not authorize such offers to be considered for that purpose. When, therefore, letters are offerare admissible for the purpose of that a party may limit his statement of the wrongful acts or his description of injuries, or both, and, if he does so, his proof will be limited to the acts set forth or the injuries described. But when this occurs, the principle of general or special damages and the rule governing them is not necessarily involved. The Croco Case, like many similar cases, relates to the question of whether the wrongful acts described in the complaint were those attempted to be proved rather than to the question of special dam-ed which ages. The question in this case, however, proving a fact other than the offer, the jury covers both the defects above referred to, namely, that the matters stated in the complaint were restrictive, and what was sought to be proved by the evidence objected to was in the nature of special damages, which should have been alleged in order to notify the appellant of what he was expected to meet at the trial. The court, therefore, erred in admitting the evidence. Error is also predicated upon the ruling of the court in admitting in evidence, over the objection of appellant, the following letter written by him to respondent just before this action was commenced and pending the negotiations for a settlement between them: "In reply to yours of the 13th, will say have agreed to give you two hundred dollars more, besides the yearling ewes. Now, Mr. McKinney, this will be every cent I will give you. Now, if this will not pay you the damages, you had better start suit. If you want the money, will send you check." Counsel for appellant urge that this letter was in the nature of a privileged communication, because it was written pending the controversy, and was a mere offer of a stated sum of money as a compromise. Under our statute, section 3217, Comp. Laws 1907, if it had been a direct offer to permit the opposite party to take judgment for a specific amount and the offer had not been accepted, the writing would have been privileged and could not have been used as evidence. This, we think, is likewise true under the general rules of evidence with regard to all offers of compromise where such an offer, either oral or written, is a mere offer of money or anything of value which is offered in settlement of the pending controversy. Ordinarily such an offer cannot be used as an admission of liability. 2 Wigmore on Evidence, § 1061; 1 Elliott on Evidence, § 646. By reference to the foregoing letter it is clear that it was a mere offer by respondent of a specific sum of money in settlement of his demand. The letter, therefore, was not admissible as an admission of liability. But it is urged by counsel for respondent that the letter was not offered as an admission of liability, but was offered on cross-examination of appellant to affect the credibility of his testimony. If this was its purpose, and there were some fact or facts stated in the letter which was contrary to appellant's testimony, it was proper to admit the letter as evidence to should be told not to consider them except for such purpose. In such a case, however, it is not the duty of the court to guard against error, but it is counsel's duty to do this. For the rules of procedure in this regard, see Groot v. O. S. L. Ry. Co., 34 Utah, 152, 96 Pac. 1019; State v. Greene, 33 Utah, 497, 94 Pac. 987; Loofbourow v. Utah L. & R. Co., 33 Utah, 480, 94 Pac. 981. The giving of the instruction relative to the measure of damages is also assigned as error. The instruction complained of, in view of the state of the pleadings, is too broad. In any case predicated upon a wrong a party may be entitled to recover (1) general damages and (2) special damages. The former are such as are the necessary and usual results of the acts complained of, and the latter are such as are not the usual and ordinary results, but such as are directly traceable to the wrongful acts complamed of and result therefrom. All other damages are too remote. If, therefore, both general and special damages are claimed, the court, in its instructions, should limit both the former and the latter to such damages as are proximate and not remote. The court should, in plain terms, indicate to the jury what the limits are beyond which they cannot legally go, and within those limits, in view of the circumstances disclosed by the evidence, permit them to fix the amount the injured party should recover. The jury should be told, however, that all damages that are to be allowed must in any event be the proximate result of the wrongful acts set forth in the complaint. The court practically fixed no limitation whatever, but permitted the jury to determine the limits for themselves. While we would not be inclined to reverse the case for this error if it stood alone, in view of the whole record, we nevertheless, in view that the case must be reversed upon other grounds, have deemed it best to refer to the matter so as to avoid a similar error upon another trial. Another assignment of error is that the court erred in refusing to give certain instructions requested by respondent. In his answer appellant pleaded a settlement in the nature of accord and satisfaction. Appellant introduced some evidence at the trial in support of this defense, and respondent also introduced some in opposition thereto. Appellant offered certain requests upon this issue which the court refused. The appel- | ance of the contract, as where the transferee lant excepted, and now urges that the court recognizes the contract vendee's rights, and is erred in refusing his requests. willing to convey, the vendee cannot rescind. Appellant [Ed. Note. For other cases, see Vendor and had the undoubted right to have the court Purchaser, Cent. Dig. § 197; Dec. Dig. § 110.*) instruct the jury with regard to the law up- 4. Vendor AND PURCHASER (§ 110*)—RESCISon every material issue in the case in support SION- RESCISSION BY PURCHASER ABANof which there was some evidence. The ex- DONMENT BY VENDOR. ception and error assigned, however, go no Where the vendor, in a contract to convey, conveyed the land to another, to whom the purfarther than the refusal to instruct as re-chase-money notes had been previously transferquested. The requests offered by appellant, in view of the issue and the evidence relating thereto, were too broad, as a mere cursory examination of them will disclose. The error assigned is that the court erred in refusing the requests as offered, and, if these did not correctly state the law applicable to the evidence, the court committed no error in refusing them. The assignment with regard to the refusal of the court to instruct the jury upon the question of respondent's rights under the contract of purchase, we have, in effect, disposed of by what we have said upon that subject, and it therefore requires no further attention. The court did not err in refusing this request. It follows from what has been said that the judgment should be, and it accordingly is, reversed, and the cause is remanded for a new trial with directions to the court to permit the parties to amend their pleadings if they so desire, and to proceed with the case in accordance with the views herein expressed; appellant to recover costs on appeal. STRAUP, C. J., and MCCARTY, J., concur. (35 Utah, 162) FOXLEY v. RICH et al. (Supreme Court of Utah. Jan. 13, 1909.) 1. ESCROWS (§ 12*)-TIME EFFECTIVE. An escrow deed does not become effective until the conditions upon which it is executed are fully performed, and the taking possession of the property by the purchaser, and part performance, ordinarily does not render it effective, so that, where a deed was deposited in escrow for delivery when the vendee paid purchasemoney notes, taxes, etc., title remained in the vendor until that time. [Ed. Note.-For other cases, see Escrows, Cent. Dig. § 12; Dec. Dig. § 12.*] 2. ESCROWS (§ 13*)-TIME EFFECTIVE-RELATION BACK TO DELIVERY. The passing of title under an escrow deed, upon performance of the conditions upon which it was executed, will relate back to the execution of the deed only when justice requires it. [Ed. Note.-For other cases, see Escrows, Cent. Dig. § 14; Dec. Dig. § 13.*] 3. VENDOR AND PURCHASER (§ 110*)-RESCISSION-RIGHT OF PURCHASER. While the vendor, in a contract to convey, by a subsequent conveyance to another prevents himself from complying with his contract, or the conveyance amounts to a repudiation of the contract, or places an additional burden upon the vendee, the latter may treat the conveyance as an abandonment of the contract by the vendor, and recover any payments thereunder; but, where the conveyance does not prevent perform red for the purpose of securing the notes, with the understanding that the transferee should convey to the contract vendee when the notes were paid, in accordance with the contract, such conveyance by the vendor did not amount to an abandonment of the contract, so as to entitle the vendee to rescind and recover payments made under the contract. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dec. Dig. § 110.*] 5. VENDOR AND PURCHASER (§ 110*)—RESCISSION-RIGHT OF VEN DEE. The fact that the vendor, under a contract in February by conveying to another would not to convey, breached and abandoned the contract justify the failure of the contract vendee to make payments due before that time, so as to entitle him to rescind and recover payments already made. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 110.*] 6. VENDOR AND PURCHASER (§ 170*)— PerFORMANCE OF CONTRACT-PAYMENT-TENDER -SUFFICIENCY. tioned upon the vendor making deeds to certain A tender of payment by the vendee, condi lands not covered by the contract, and after making arbitrary deductions of unliquidated claims against the vendor, was not good. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 345; Dec. Dig. § 170.*] 7. VENDOR AND PURCHASER (§ 85*)-RESCISSION-AGREEMENT BY PARTIES-EFFECT. A vendee, in an executory contract to convey, may recover the amount paid thereunder, where both parties voluntarily rescinded the contract. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 141; Dec. Dig. & 85.*] 8. VENDOR AND PURCHASER (§ 334*)-RESCISSION BY VEndee-EffeCT-RIGHTS ON RESCISSION. The purchaser, under a contract to convey, may recover the amount paid thereunder, where the vendor fails to perform his part of the contract, or was guilty of fraud in making it, or the purchaser rescinds, under an option to do so contained in the contract, or where both parties are in default and unable to complete the contract at the time stipulated. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. § 334.*] 9. VENDOR AND PURCHASER (§ 107*)-RESCISSION BY VENDEE-RIGHT. That the vendor demanded some security for the debt, after the vendee had refused to make payments due, would not entitle the latter to rescind the contract and recover payments already made. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 190-192; Dec. Dig. § 107.*] 10. VENDOR AND PURCHASER (§_77*) — ConOF CONTRACT "DEFAULT STRUCTION IN A contract to convey provided that the deed should be delivered to the vendee upon payment .of a certain amount each year, from 1904 to 1910, and in case of "default in payment" the deed should be returned to the vendor, and previous payments should be used as rent on the premises. Held, that the contract could not be construed so as not to put the vendee in default for nonpayment until 1910, but his failure to make any payment when it became due would amount to a default. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 77.*] entered into, and both the contract and the deed were dated August 5, 1903. The deed was placed in escrow, and was to be held by the Bank of Brigham City, in which the other appellants were interested in some capacity or other, until respondent had made the final payment. The agreement between Rich and respondent, so far as material, is as follows: "Brigham City, Utah, August 5, 1903. Το 11. VENDOR AND PURCHASER (§ 335*)-PER- The Bank of Brigham City-Upon payment FORMANCE OF CONTRACT-BREACH-EFFECT. of the amounts listed below, you will deliver A contract to convey required the payment to Chas. E. Foxley, or order, the inclosed of the purchase price at stipulated periods, and provided that, in case of default in payment, the deed from Mrs. Florence Rich and husband, escrow deed was to be returned to the vendor, conveying the following property in Brigham and previous payments should be used as rent on City, Utah, to wit: [describing it] payments the premises. Held, that the rights of the parties upon a breach by the vendee were measured to be made as follows: On or before Novemby the contract itself, and the vendor was enti- ber 15, 1904, $500.00; on or before November tled thereunder to apply payments already made 15, 1905, $500.00; on or before November 15, upon the rent, and to have the deed returned, 1906, $500.00; on or before November 15, while the vendee was entitled to have the unpaid purchase-money notes surrendered to him, so 1907, $500.00; on or before November 15, 1908, that the vendor could not recover thereon. $500.00; on or before November 15, 1909, $500.00; on or before November 15, 1910, $500.00. Total $3,500.00. All of the above to draw interest at the rate of ten per cent. per annum from October 1, 1903, payable on or before the 15th day of November of each year. In case of default in payment of above payments, said deed to be returned to J. Y. Rich, and previous payments made shall be used as rent on said premises. Charles E. Foxley shall pay all taxes and assessments that may be levied against said premises after Oct. 1, 1903, and may pay all or any part of said amounts specified above at any time, whether due or not, and stop interest thereon, and shall be [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.*] 12. CONTRACTS (§ 317*)-BREACH-EFFECT. Where the parties to a contract stipulate what the result of a breach thereof shall be, the courts will ordinarily give it only the result stipulated. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 317.*] Appeal from District Court, First District; W. W. Maughan, Judge. Action by Charles E. Foxley against J. Y. Rich and others. From a judgment for plaintiff, defendants appealed. Reversed and remanded, with directions. J. D. Call, for appellants. T. D. Johnson, entitled to the possession of said premises for respondent. of August, 1903. The Bank of Brigham City, John Pingree, Cashier." on and after the 1st day of October A. D. 1903. John Y. Rich, Chas. E. Foxley. WitFRICK, J. The pleadings in this case ness: John Pingree." Upon the back of cover 28 pages of the printed abstract, and the agreement was indorsed: "Received the are too long to be set forth even in con- within-described escrow papers this 5th day densed form. The evidence is also quite voluminous, and we shall not attempt to set it forth, except such parts as we deem are Respondent, at the time the foregoing controlling of the principles involved. The agreement was entered into, also made and object of the action was to recover back mon- delivered to J. Y. Rich seven promissory ey paid by respondent to the appellant J. Y. notes for $500 each, negotiable in form. The Rich in pursuance of a certain executory con- first note was made payable on the 15th day tract entered into between them, whereby re- of November, 1904, and the others were payspondent agreed to purchase from said Richable annually on the 15th day of November certain lots, together with a dwelling house of each year thereafter, so that the last one thereon, in Brigham City, Utah. The other appellants were made parties to the action because they had succeeded to the rights of Rich by assignment of the contract and certain promissory notes, hereafter to be noticed. Before such assignment respondent had made a payment of $500 as part payment of the purchase price for said lots, which was made at the time the contract was entered into, and he agreed to pay the remainder, amounting to $3,500, in seven annual installments, the first of which became due on November 15, 1904. Mr. Rich executed a deed to the premises at the time the contract was became due on November 15, 1910. Respondent made no payments except the one of $500 at the time the contract was entered into. At the time of the trial, however, he claimed that he had made some arrangements with J. Y. Rich, during the summer or fall of 1904, whereby it was agreed between them that certain moneys, which were claimed to be owing by said Rich to respondent's father and to Foxley Bros., were to be applied on the $500 note coming due November 15, 1904, but respondent, on cross-examination, admitted that Mr. Rich had settled and paid both his father and Foxley Bros. in full, and *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |