23 Utah 614 | Utah | 1901
After stating the facts, the opinion was delivered by
The principal ground upon which the appellants rely for a reversal is that the court erred in refusing to grant defendants’ motion for a nonsuit at the close of plaintiff’s testimony. They insist that the motion should have been granted, for the following reasons: (1) Plaintiff’s evidence failed to disclose that the defendant corporation made representations of any kind. (2) Any representations made by the defendant Schenck, purporting to cancel a written contract between plaintiff and the defendant company, were without the scope of his authority, and therefore of no binding effect upon anybody. (3) Plaintiff was not induced to surrender, nor did he surrender, his lease by reason of the representations made. (4) The representations made were in fact true, and operated as a cancellation of the lease.
Considering the first three points together, we think the plaintiff’s case presented a prima facie case, and' was properly submitted to the jury. Plaintiff’s evidence tended to prove that the defendant David Schenck, as superintendent, acting on behalf of the Dalton & Lark Company, made the lease to plaintiff, that the Dalton & Lark Company knew of the exist
The remaining point made by appellants upon the motion for a nonsuit is that the representations were in fact true because plaintiff’s lease provided that it should be null and void whenever there should be “a sale or transfer” of the property during the life of the lease, and appellants contend that in order to terminate this lease it was not necessary that any actual sale should have taken place, so long as there was a transfer or delivery of possession, as disclosed by the evidence in this case. That it was not true that there was a sale of the property is too apparent to admit of controversy. The very terms of the agreement between Farnsworth and the defendant company expressly forbid any such interpretation. No court could ever be induced to hold that an agreement providing that a party “does • not bind himself to pay for said property” amounts to a contract of sale. Contracts of sale, before being such must contain mutual obligations of full payment and absolute conveyance. Consequently the only inquiry is as to the meaning of the word “transfer” in this lease. The word “transfer” may mean either a conveyance of title or merely a delivery of possession; and, if the construction of a written contract is questioned, we must look to the document itself, to the entire transaction and the surrounding circumstances, to ascertain the true intent of the parties. There is nothing in the lease itself which would indicate that the minds of the parties ever met upon the proposition that the mere delivery of possession to a third party would have the effect to cancel plaintiff’s lease, because, if that were true,.defendants were at
Appellants further insist that a reversal of the judgment below should be granted because the court erred in giving its instructions to the jury and in refusing to give certain instructions requested by defendants. We must refuse to consider these assignments of error, for the reason that the exceptions to such instructions and the refusal of the requests were not properly taken. It appears from the record that, after the court had delivered its charge to the jury in this action, counsel for defendants, while plaintiff’s counsel was arguing to the jury, and before verdict, informed the court, without informing counsel for plaintiff, that he desired to save some exceptions to the charge of the court, and at the same time inquired of the court if he might have permission to have said exceptions taken down by the official court reporter on the record in the clerk’s office, which .was a room adjoining* the court room. Thereupon the court informed counsel for defendants that he