Weyant et al. v. Utah Savings & Trust Co., 54 Utah 181.

ON APPLICATION FOR REHEARING.

FRICK, J.

Mr. James Ingebretsen, one of appellant's counsel, has filed a petition for rehearing, in which two grounds are stated why a rehearing should be granted, namely:

"(1) That the court apparently failed to note the precise terms of the decree rendered by Judge Lewis in the Weyant-Morgan case; (2) that the court omitted to consider the authorities upon the legal effect of this decree."

In concluding a somewhat vigorous argument in support of his petition counsel says:

"In view of our blamelessness, and that the Weyants have recovered a large part of the estate, and that part of this judgment is for items such as rent for the property after distribution, and that we have parted with such security as we had and gained nothing for ourselves, and that no reserve or other precaution exists for such a liability, I had hoped and still hope that the court might kindly consider and follow the conclusion reached in the several similar cases we have cited, especially since there cannot be found in all the world a similar case in which the surety has been held."

In this connection he also complains that we did not refer to some of the cases cited by him, and for that reason seems persuaded that we did not consider them.

In the opinion the writer explicitly stated the reason why more of the numerous cases referred to by counsel were not reviewed. In a case like this, where so many cases are referred to, which have only a remote bearing upon the principal question presented, and in which the controlling facts clearly differ from the facts stated in the cited cases, it is impracticable, if not impossible, to distinguish the numerous cases and set forth the reasons at length why they are not controlling. The writer took special pains to set forth at least the controlling facts in detail in the opinion. No fault is found with the statement as made. In formulating the conclusion he again attempted to state them as explicitly as possible under the circumstances. The facts and the reasons for the conclusion reached, as well as the law deemed applicable

Appeal from Third District.

to the peculiar features of this case, were all thoroughly considered by all the members of this court, not only once, but several times, and, after doing so, the conclusion was, and still is, unanimous that no other result save the one announced in the opinion is permissible. In view, however, that counsel insists that our conclusion is contrary to the cases he cited in his orignl bref, we here cite all that he nw relies on in his petition for rehearing, namely: Silva v. Santos, 138 Cal. 536, 71 Pac. 703; Curtis v. Schell, 129 Cal. 208, 61 Pac. 951, 79 Am. St. Rep. 107; Estate of Hudson, 63 Cal. 454; Estate of Walker, 160 Cal. 547, 117 Pac. 510, 36 L. R. A. (N. S.) 89; Evans v. Evans (Ala.) 76 South. 95; Sohler v. Sohler, 135 Cal. 323, 67 Pac. 282, 87 Am. St. Rep. 98; Estate of Leavens, 65 Wis. 440, 27 N. W. 324; Turner v. Cole, 24 Ala. 364. We refer to those cases, however, only so that the reader may, if he so desires, examine them, and not for the purpose of now reviewing them.

In this connection it is, however, only fair to state that we cannot agree with counsel's contention that in the foregoing cases the law is stated that where a court adjudges that a defaulting administrator holds the property which is still in his possession, and which was wrongfully converted by him while acting as administrator, in trust for the heir or creditor of the estate, as the case may be, that, under facts and circumstances like those in the case at bar, the surety on his bond may not be held liable for the value of the property so wrongfully converted and which cannot be recovered from the administrator. That is the crux of this case. Counsel entirely ignores or overlooks the all-potent fact ever present in this case, that the respondents at no time were brought into court. He assumes that, because the notice published by the administratrix in the name of Fuller was sufficient to bring those who transacted business with the deceased and who knew him only by that name into court, therefore it was sufficient to bring in the respondents. Not so. The respondents were never brought within the jurisdiction of the court, and hence not into the probate proceedings, and therefore any decree rendered in those proceedings, so far as they were concrned, was a mere nullity.

Weyant et al. v. Utah Savings & Trust Co., 54 Utah 181.

That proposition is illustrated in the case of In re Killian, 172 N. Y. 547, 65 N. E. 561, 63 L. R. A. 95, where a party interested in an estate was not served with notice, and it was there held that the decree in the probate proceeding had no binding force as to him. The foregoing proposition is, however, so elementary that no citation of authority should be required. The following cases also clearly support the conclusion reached in the principal opinion, namely: Fisher v. Wood et al., 65 Tex. 199; Maney v. Casserly, 134 Mich. 252, 96 N. W. 478. In the Texas case it is expressly held that a defaulting executor may be charged as trustee, and after the property found in his hands is exhausted "the plaintiffs will have to look to the executor and his bondsmen." Why not? What is an administrator's bond given for, if it is not to protect the heir against the wrongful official acts of the administrator in administering the estate? In view that in this case the administratrix practiced fraud upon the court, upon the surety on her bond, and upon the heirs alike, does not change the rule, although her wrongful acts fall with peculiar severity upon the surety. The surety vouched for her official conduct, and, however innocent, must nevertheless bear the burden as against the heirs, who are likewise innocent, and for whose protection the law required the giving of a bond.

The contention that we quoted the conclusion of law found in the second case, instead of the one found in the first one, is too trivial to require special comment. The conclusion of law we quoted in the opinion was inevitable, in view of the facts found in both cases and therefore, although counsel's contention be conceded to be correct, it has no bearing upon the result.

We are still of the opinion that the conclusion reached is sound, and hence should prevail. The petition for a rehearing is therefore denied.

CORFMAN, WEBER, GIDEON, and THURMAN, JJ.,

concur.

Appeal from Seventh District.

1.

AVGIKOS v. LOWRY.

No. 3294. Decided March 28, 1919. (179 Pac. 988.) SALES-FAILURE TO DELIVER AMOUNT CONTRACTED-REMEDIES OF VENDEE. Where a vendor contracts to deliver a specified amount of goods or material, and the full amount is not delivered, the vendee is at liberty to refuse to accept the part. tendered, or, having accepted a part, is at liberty to return that and refuse to accept less than the entire amount specified; but, after having received and retained a part of the amount, a vendee will not be permitted to refuse to pay for the goods so delivered and retained, because of failure of vendor to deliver full amount contracted for, especially where value and usefulness of goods actually delivered and received are in no way deteriorated or affected by failure to deliver the full amount. (Page 220.)

2. SALES-PLEADING-DEM URRER. Where complaint, in action for contract price of wool delivered, set out contract, which provided for delivery of a specific amount of wool at so much per pound, and, after stating the delivery of a smaller amount, alleged "that the defendant accepted the said wool and agreed to pay for the same according to agreement," plaintiff was entitled to recover for the goods actually delivered, and a demurrer to the complaint was properly overruled. (Page 220.) CONTRACTS-PERFORMANCE QUESTIONS FOR COURT. Where the facts are undisputed, the question of whether or not they constitute a performance or breach of contract, is one of law for the court.1 (Page 222.)

3.

4. SALES-FAILURE TO DELIVER AMOUNT OF GOODS CONTRACTED JusTIFICATION. Where one undertook to sell about 80,000 pounds of wool, to be clipped from 750 ewes and 250 lambs, it was no legal excuse or justification for failure to deliver the amount of wool cut from such number of sheep that during the winter a great many sheep died by reason of the severe weather and the inability of the owners to obtain necessary food for them.2 (Page 222.)

5. SALES-FAILURE TO DELIVER AMOUNT OF GOODS CONTRACTED— EFFECT OF ACCEPTANCE BY VENDEE-RIGHTS OF VENDEE. Although a vendee, who accepted and retained part of the goods mentioned in a contract, could not avoid paying for same on

1 Manti City Sav. Bank v. Petersen, 33 Utah, 209, 93 Pac. 566, 126 Am. St. Rep. 817; Salt Lake City v. Salt Lake City Water & E. P. Co., 54 Utah, 10, 174 Pac. 1134.

2 McKay v. Barnett, 21 Utah, 239, 60 Pac. 1100, 50 L. R. A. 371.

6.

Avgikos v. Lowry, 54 Utah 217.

ground that vendor failed to deliver amount specified in contract, he was entitled to damages by reason of failure to deliver the entire amount; the value of such goods having increased between date of contract and date of delivery. (Page 223.)

EVIDENCE-PRIVILEGED COMMUNICATIONS-OFFERS TO COMPROMISE. Where a controversy arose between a vendor and vendee of wool as to amount due vendor, who failed to deliver entire amount specified, and vendee offered to pay vendor certain amount in effort to compromise, fact that such offer was made was not admissible in evidence, in an action by vendor for purchase price of wool delivered. (Page 224.)

Appeal from the District Court of Carbon County, Seventh District; Hon. George Christensen, Judge.

Action by Tom Avgikos against W. A. Lowry.

Judgment for plaintiff. Defendant appeals.

REVERSED and REMANDED.

P. G. Ellis of Salt Lake City, for appellant.

L. A. McGee and Ferdinand Ericksen for respondent.

GIDEON, J.

Plaintiff, in the first cause of action, seeks to recover judgment against defendant for $554.60, alleged to be due as a balance for 3,182 pounds of wool delivered to defendant under a written contract, hereinafter referred to, made between the parties in December, 1916. In the second cause of action judgment is sought for $471.40 as a balance due one Jim Avgeris upon a similar contract made with defendant under which 2,238 pounds of wool had been delivered. The right of action in the second cause of action had been assigned to the plaintiff.

Defendant admitted the contracts, admitted the delivery of the wool as stated in the complaint, admitted that he had paid