16 Utah 360 | Utah | 1898
This is an action upon a contract, which, the plaintiff claims, was made for the benefit of herself and others, although she was not a party thereto. It appears that on April 30, 1894, William A. Frailey and associates, owners of a mine, entered into a written contract with the defendant, whereby, for a certain consideration, they agreed to convey their mine to him free of incumbrance, except a mortgage lien, and certain claims of persons for labor performed and materials furnished at the mine, which mortgage and claims, it is contended, the defend-assumed and agreed to pay. The plaintiff maintains she was one of these claimants, and, at the trial, the jury returned a verdict in her favor for the amount of her claim, and the court entered judgment thereon.- This appeal is from the judgment.
Counsel for the appellant insist that Exhibit A, an instrument, which the appellant drew up, but which was never signed by the parties to the transaction, constituted a part of the contract of sale, and that the court erred in excluding it from the evidence. Respecting Exhibit A, the witness Richard Gundry, one of the owners of the mine, testified that Markland drew it up; that it was never perfected or executed; and that Exhibit 1, the contract read to the jury, was the only agreement between the grantors and grantee. Another witness testified that
The next question to be determined is, what were the rights of the respondent under the contract of sale? By the terms of that instrument, the owners bound themselves to convey, the property to Markland “free and clear of all liens, claims, clouds, and incumbrances whatsoever, except a certain mortgage for about $3,700, and interest thereon, given on said property, * * * and except for the claims of persons who have performed labor upon or furnished materials for us in or on said property, and which outstanding claims do not exceed in the aggregate the sum of $2,500,” the conveyance to-be made and delivered on or before May 10, 1894. ' The mortgage indebtedness and claims Markland assumed and agreed to pay, as stipulated in the wfiting signed by him and the owners. The deed, executed and delivered in pursuance of the agreement bears date May 7, 1894. There is no question that the amount of all the claims, including the respondent’s, is less than $2,500. At the trial the court permitted evidence to be introduced to show what the intentions of the parties to the transaction were, at the time of the making of the contract of sale, respecting the assumption of the payment of respondent’s claim by the appellant. This was objected to as incompetent, on the ground that it was sought thereby to con
In the case at bar, the witness Richard Gnndry, one of the grantors, testified that at the time of the transaction the respondent, Mrs. Brown, had a claim of about $380 against the mine; that at that time the grantee was informed by him that she was one of the claimants; and also that her claim was a part of the debt against the mine. The witness Frailey, another of the grantors, testi-
It is also insisted that the court erred in permitting the witness Thomas to testify to a conversation he said he had with the appellant, concerning a claim the witness had against the mine. This evidence was clearly immaterial, and ought to have been excluded; but, under the circumstances of this case, we do not regard its admission as reversible error. It did not prejudice the rights of the appellant, if the respondent was entitled to recover, and we think she was, by reason of the contract between the appellant and the owners of the mine. We are also of the opinion that the instructions of the court, under the facts of this case, although subject to criticism, were not prejudicial to the appellant. We find no reversible error in the record. The judgment is affirmed.