ought therefore to be closely and accurately tried, upon the competent evidence presented. It is urged that all, or substantially all, of this testimony, except perhaps the fact, offered to be proven by Goble, that Pfeiffer received no compensation during his absence, came out in the trial of the cause, without objection, from other sources, and that, therefore, the plaintiff in error is not prejudiced. But this does not meet the difficulty or correct the error referred to. "It is the right of parties to assume, in the absence of countervailing rulings or indications, that a court will adhere to a theory clearly indicated by a ruling. Where the theory thus indicated is wrong, and is such as will probably lead to an erroneous decision, it will be presumed on appeal, nothing to the contrary appearing, that the case was tried on the theory indicated by the ruling." Elliott, App. Proc. § 591. The theory indicated here is that Pfeiffer should be deemed the cashier and authorized agent of the bank in the particular transaction,--the bank to be bound by his acts and declarations, and his knowledge imputed to the bank as notice, -and it must be presumed that the court tried the case on that theory. The same reasoning disposes of the claim of the defendant in error that "there is sufficient evidence in the case of the fact that the plaintiff in error had knowledge of the rights of the defendant in error, in the draft in question, through its vice president, Goble, to sustain the action of the lower court." There is nothing in the record to indicate that the lower court so decided. It may have given slight consideration, or none at all, to testimony tending to show that the bank had knowledge through Goble; deeming it unnecessary, as the proof seemed ample that it had notice through its cashier, Pfeiffer, for it is presumed to have adhered to the theory indicated. We are of opinion that the parties are entitled to a trial upon the issue presented by the pleadings,-that is, that the sum in question belonged to the plaintiff, being the proceeds of property mortgaged to him; that the defendant had notice of this fact at the time it received the draft from Pfeiffer, and, having such notice, refused to pay it over on demand. The decision will be reversed, and the case remanded for a new trial.

GROESBECK, C. J., and CONAWAY, J.,

concur.

(5 Wyo. 148)

LARAMIE COAL & ICE CO. v. EASTMAN et al.

(Supreme Court of Wyoming. Dec. 28, 1894.) EXCEPTIONS TO DEPOSITION-WHEN MADE-ADMISSIONS BY AGENT.

1. An objection to a deposition, as not being signed by the witness, is not an objection for "incompetency or irrelevancy," within the meaning of Rev. St. § 2633, providing that no

objection to a deposition other than for such cause shall be regarded, unless made before trial.

2. Statements by an agent of defendant company, made before the agency began and before defendant was organized, are inadmissible in an action on a contract made by the company.

Error to district court, Converse county; Richard H. Scott, Judge.

Action by Arthur Eastman and Nial R. Eastman, copartners, against the Laramie Coal & Ice Company, for breach of contract. Judgment for plaintiffs, and defendant Reversed. brings error.

Nellis E. Corthell, for plaintiff in error. Bramel & Bramel, for defendants in error.

CONAWAY, J. On October 27, 1892, the parties entered into a contract in writing, by the terms of which defendants in error were, at a specified price, to "have the work of delivering all coal sold and handled in the city of Laramie, state of Wyoming," by plaintiff in error, "excepting such coal as is hauled by customers or under their direction, for the term of two years from November 1, 1892." The gravamen of the complaint is that on November 9, 1892, plaintiff in error, "in violation of its duties under said contract, and in violation of the terms thereof, refused longer to employ or to permit plaintiffs further to comply with and to perform their obligation and duties under said contract, although plaintiffs have been willing and able at all times fully to comply with all the terms of said contract and writing obligatory." The defense is, in substance, that defendants in error were not fulfilling the requirements of the contract themselves, and did not, as required by the contract, "perform the delivery of the coal referred to in said contract in a prompt or skillful or competent or workmanlike manner." There was also an attempt by plaintiff in error to prove at the trial that there was no profit in hauling and delivering coal at the price specified in this contract, and consequently no damage to defendants in error resulting from their discharge from the employment. The evidence upon this point was conflicting. As bearing upon this question, the deposition of Edward P. Kelley was offered in evidence, and was excluded because it was not signed by the witness. This objection was first made at the trial. It seems clear that this is an objection which, to be available under our statute, must be made before trial. Section 2633 of the Revised Statutes reads as follows: "No exception, other than for incompetency or irrelevancy, shall be regarded, unless made and filed before the commencement of the trial." The section immediately preceding provides that "exceptions to depositions shall be in writing, shall specify the grounds of objection, and shall be filed with the papers in the case." It does not appear from this record whether the exception to this deposition was

made in writing and filed or not. It does appear that the objection was not made until after the trial was commenced. The objection that the deposition is not signed is not an objection for incompetency or irrelevancy. If the witness were incompetent, or if his testimony were incompetent or irrelevant, the objection would lie, and the testimony would be excluded if the witness were produced in court. Neither incompetency nor irrelevancy depend upon the form of the deposition, nor upon a compliance with the statutory directions for taking depositions. The testimony, having been regularly given under the sanction of an oath, does not lose the character of a deposition because the witness failed to subscribe it. See Mobley v. Hamit, 1 A. K. Marsh. 590; Wiggins v. Pryor, 3 Port. (Ala.) 430; Rutherford v. Nelson, 1 Hayw. (N. C.) 122; Morrs v. Palmer, 15 Pa. St. 56. Defendants in error cite Simpson v. Carleton, 1 Allen, 109; Simpson v. Dix, 131 Mass. 185; and Johnson v. Perry, 54 Vt. 459. These cases do not seem to have arisen under a statute like ours. Another error assigned, which may be serious and prejudicial, is the admission in evidence of certain conversation of one Blackburn with one of the defendants. Blackburn was subsequently managing agent of the company which is plaintiff in error. But it is claimed that this conversation was had before he became such agent, and even before the company was organized. If this be true, it is difficult to see on what principle evidence of this conversation could be admitted. The judgment is reversed, and the cause remanded for a new trial.

GROESBECK, C. J., and CORN, J., con

cur.

(5 Wyo. 153)

EDWARDS v. MURRAY. (Supreme Court of Wyoming. Dec. 28, 1894.) CONDUCT OF TRIAL RIGHT TO OPEN AND CLOSE -EXPERT EVIDENCE-Verdict-BaiLIFF IN

CHARGE OF JURY-MISCONDUCT.

1. A verdict rendered on conflicting evidence will not be disturbed for insufficiency of the evidence, unless there is a total failure of proof to support it, or a great preponderance against it.

2. Where part of the allegations in a complaint for breach of contract was denied in the answer, and plaintiff, to establish performance on his part, introduced his evidence, and, after defendant's evidence was in, introduced further evidence in rebuttal, he was entitled to the opening and closing arguments to the jury.

3. In an action for the price of sheep shipped to defendant, one who has qualified as an expert, in order to testify to the value of the sheep at the place of delivery, may testify to the value of such sheep at another place, and the cost of shipping them from the one place to the other.

4. The fact that the bailiff, when he asked the jury if they had come to a verdict, and was asked by a juror when the judge would call them into court, replied, "I suppose some time next week," is not ground for reversal.

Error to district court, Laramie county; Richard H. Scott, Judge.

Action by Edward S. Murray against Griff W. Edwards on a contract for the purchase of sheep. Judgment for plaintiff, and defendant brings error. Affirmed.

Clark & Beard, John F. Mail, and C. C. Hamlin, for plaintiff in error. Lacey & Van Devanter, for defendant in error.

CONAWAY, J. On September 12, 1892, by written contract between the parties, defendant in error sold to plaintiff in error "six thousand eight hundred (6,800) head of one and two year old wethers, all branded with an S brand, and a part of them branded with an M brand, being the one and two year old wethers purchased by the said party of the first part from Seldom, Ridge & Pebbles and V. S. Acord." It appears that instead of "Seldom, Ridge & Pebbles" there should have been written "Seldomridge & Pebbles," a clerical error in reducing the contract to writing. These sheep were to be delivered by defendant in error to plaintiff in error at Rock Springs, Sweetwater county, Wyo., on June 1, 1893, or at any time in May of that year, upon reasonable notice by plaintiff in error. Defendant in error contracted to "handle, run, herd, and care for" the sheep, at his own expense, but as agent or bailee for plaintiff in error, and to give them all proper care and attention until such delivery, and to run them in bands of not more than 2,700 each, and to make good any loss that might occur by other wethers of the same age and grade, and deliver not less than 6,800 head, and to deliver them in a good and clean condition; but, if they should be found to be scabby, to pay for dipping them, and, if they should become scabby during the winter of 1892-93, to dip them as soon as the weather would permit. The consideration paid and to be paid by plaintiff in error was $22,950. $17,000 was paid at the execution of the contract, and $5,950 was to be paid on the delivery of the sheep. On May 22, 1893, a delivery of the requisite number of sheep was made upon the written request of plaintiff in error.

The plaintiff in error alleges certain violations of the contract by defendant in error, and certain fraudulent representations, by which plaintiff in error was induced to enter into such contract, on account of which plaintiff in error refused, and still refuses, to make the final payment of $5,950. To recover this sum, with interest from June 1, 1893, defendant in error brought this action in the district court of the Second judicial district for Albany county, setting forth the contract and alleging compliance on his part with its terms. Plaintiff in error admits the making of the contract, and by way of defense and counterclaim alleges that he had no opportunity to examine the sheep when he made the purchase, but relied upon false and fraudulent represen

tations of defendant in error that the sheep were of a grade and quality better than they in fact were, to the damage of plaintiff in error in the sum of $12,750; and that defendant in error negligently handled and cared for the sheep, and allowed them to become diseased and scabby, to the damage of plaintiff in error in the sum of $6,000; and that plaintiff in error was compelled to pay for dipping the sheep the sum of $238. Plaintiff in error prays judgment for $18,980. There was a trial by jury, and a verdict and judgment in favor of defendant in error for $4,820.75. Plaintiff in error claims that the verdict and judgment are "against the weight of evidence, and contrary to the evidence on the question of the assessment of damages awarded to defendant in error." As to this, it is only necessary to say that the evidence was conflicting. It was the proper province of the jury to consider the evidence and to determine the question of damages. It is well settled that an appellate court will not interfere in such cases unless there is an utter lack of evidence to sustain the verdict, or at least a very great preponderance of evi dence against it. We cannot say that this is such a case.

Error is assigned in the giving and refusing of a number of instructions to the jury over the objection of plaintiff in error. It appears that the law of the case was fairly stated in the instructions given. That it was not repeated in instructions asked for is not prejudicial error.

It is assigned as error that the court refused to allow plaintiff in error the opening and closing arguments to the jury Defendant in error (plaintiff below) first presented his evidence in chief to the jury, and, after the evidence of plaintiff in error was produced, introduced further evidence in rebuttal, without objection on the part of plaintiff in error. Some things alleged in the statement of the cause of action in the petition of defendant in error were denied in the an swer of plaintiff in error. It was not purely and simply a plea in confession and avoidance, but was something more. It was necessary for the defendant in error, in order to establish his cause of action in full, to show by evidence a performance on his part of the conditions of his contract by him to be performed, which performance was alleged by him and denied by plaintiff in erl'or. This he was allowed to do, without ob jection, by first introducing his evidence. Under these circumstances he was entitled to the opening and closing arguments. The damages were not liquidated. 1 Thomp. Trials, §§ 229, 232, 233.

The admission of the testimony of Joseph Young is assigned as error. This testimony tended to show the value of sheep at Rock Springs, and, as bearing upon that point, their value at Colorado Springs, and the expense of shipping from that point to Rock Springs. Mr. Young was introduced as an

expert, acquainted with the price of such sheep as those delivered at Rock Springs. It would be a very strict rule to hold it preju dicial error that he testified that he was acquainted with these particulars tending to show his thorough acquaintance with the subject.

It is assigned as a cause for reversing the judgment, that the bailiff, when he asked the jury if they had agreed upon a verdict, was asked by one of the jurymen when the judge would call them into court, and replied, "l suppose some time next week." In support of his contention on this point, plaintiff in error cites Obear v. Gray, 68 Ga. 182; Gholston v. Gholston, 31 Ga. 625; Cole v. Swan, 4 G. Greene, 32; People v. Knapp, 42 Mich. 257, 3 N. W. 927. An examination of these cases shows that in each case the irregularity in the conduct of the officer was much more serious and more adapted to influence wavering jurymen than was the conduct of the bailiff in this case at bar. The cases cited on behalf of defendant in error show that irregular conduct of officers more serious than this has not been considered cause for reversal. See State v. Wart, 51 Iowa, 587, 2 N. W. 405; Daniel v. Frost, 62 Ga. 697; Price v. Lambert, 3 N. J. Law, 122 (*401); Wiggins v. Downer, 67 How. Pr. 65; Taylor v. Everett, 2 How. Pr. 23; Pope v. State, 36 Miss. 121; Leach v. Wilbur, 9 Allen, 212; Darling v. Railroad Co. (R. I.) 24 Atl. 462. We find no prejudicial error in this record. The judgment of the district court is affirmed.

1. The board of supervisors of a city authorized the committee on health to purchase certain land. The deed was delivered to the committee, and presented to the board, which directed that it be held "in escrow" till the consideration therefor was allowed. A warrant for the consideration was issued, and ordered by the board to be paid, and was duly audited and delivered to the grantor. Held, that the board could not, by repealing its action as to the purchase, divest the grantor of his right to collect the warrant.

2. Under San Francisco Charter (St. 1856, p. 170, § 84), providing that the allowance or approval by the board of supervisors or any other board or officer of any demand which, upon the face of it, appears not to have been expressly made by law payable out of the treasury or fund to be charged therewith, shall afford no warrant to the treasurer for paying it, the treasurer is charged with knowledge of the objects for which public money in his custody may be expended, and, if a demand is presented to him which, on its face, appears to be for a claim not authorized by law, he should refuse to pay the same.

3. Where the board of supervisors issue a

5. St. 1863, p. 168, authorizing the board of supervisors of San Francisco "to allow and order paid out of the general fund, not to exceed $6,000 for any one year, for the support of a smallpox hospital, does not authorize the board to purchase a site for such a hospital.

6. St. 1863, p. 540, authorizing the board of supervisors of San Francisco to make all regulations which may be necessary or expedient for the prevention of contagious diseases, does not authorize the board to purchase a site for a smallpox hospital.

7. Const. art. 11, § 11, authorizing a city to make all such police, sanitary, and other regulations as are not in conflict with general laws, does not authorize the purchase of a site for a smallpox hospital.

In bank. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Mandamus by A. W. Von Schmidt to compel James H. Widbur, treasurer of the city and county of San Francisco, to pay a city warrant. Judgment was rendered for petitioner, and from an order denying a motion for a new trial defendant appeals. Reversed.

Harry T. Creswell, for appellant. Tilden & Tilden, for respondent.

HARRISON, J. In September, 1890, respondent made an offer in writing to the board of supervisors of the city and county of San Francisco to sell to the city certain real property therein, known as "Shag Rock," for the sum of $15,000. The communication was referred by the board of supervisors to the committee on health and police, and on the 2d of December, 1890, that committee reported in favor of the purchase, and its report was adopted by the board of supervisors. December 9, 1890, the board of supervisors adopted a resolution authorizing the committee on health and police to purchase the property on behalf of the city and county for the sum of $15,000, as a site for a smallpox hospital; the title to the said property to be first passed upon by the city and county attorney, and, if found perfect, then such purchase to be made. January 2, 1891, the city and county attorney gave to the committee his opinion that the title thereto was in the respondent, Von Schmidt, and on the same day Von Schmidt executed an instrument sufficient in form, and purporting to convey the property to the city and county of San Francisco, and delivered it to the chairman of the committee on health and police. At the meeting of the board of supervisors in the evening of that day the chairman of this committee presented the deed, and upon his motion the clerk was directed to "hold said deed in escrow until the consideration therefor had been duly allowed." At the same

meeting of the board of supervisors a warrant or demand for the sum of $15,000 in favor of Von Schmidt was presented, and upon the approval of the auditing committee, to which it had been referred by said board, was allowed and ordered paid, and on the following day, after having been duly audited by the auditor, was presented to the treasurer for payment, and was by that officer registered, but was not paid. January 5, 1891, the board of supervisors passed a resolution purporting to repeal its action in allowing and ordering the payment of the demand and in authorizing the purchase of the property, and directing the treasurer not to pay the said demand, and also to cause the cancellation of its registration upon its books, and also directing the auditor to cancel all action in his office whereby the said demand had been audited, and the clerk of the board was directed to return to Von Schmidt his deed of conveyance. Under these resolutions entries were made on the books of the auditor and of the treasurer canceling their previous action in reference to the demand, and the clerk returned the deed, but Von Schmidt declined to receive it, and returned it to the custody of the clerk. January 6, 1891, Von Schmidt again presented the demand to the defendant, as treasurer, and demanded payment, which was refused; and on the 12th of January made application to the superior court for a writ of mandate directing the payment of the demand. Upon the hearing by that court judgment was rendered in favor of the petitioner. A motion for a new trial was made on behalf of the defendant and denied, and from this order the defendant has appealed.

The delivery of the deed by Von Schmidt to the chairman of the committee on health and police was sufficient, on his part, as a delivery to the city. That committee had been authorized by the board of supervisors to make the purchase, and to that extent was the agent of the city to which the delivery might be made, and the action of the supervisors in directing the clerk to hold the deed until the consideration therefor had been duly "allowed" was in accord with the purpose of Von Schmidt in delivering it to the chairman that it might be delivered to the city when the warrant was issued. The term "escrow" in the direction to the clerk had no technical significance, and did not change the character of the instrument or of its delivery, but was used in the same sense in which Von Schmidt stated that the delivery was made, viz. "If I received the warrant, the sale was complete, and, if not, I was to have the deed back." It was the ordinary case in which the delivery of the deed is to be made simultaneously with the payment of the purchase money. The mere act of the grantor in placing the deed in the hands of the grantee, without an intention thereby of parting with the control of the deed, does not render the delivery complete

The

unless the purchase money is paid. subsequent approval by the board of Von Schmidt's demand for the purchase money, and issuance to him of the warrant therefor, completed an acceptance of the deed by the city; and, if the board of supervisors had the power to make the purchase, the transaction would have been complete, and his title to the land transferred to and vested in the city, and his right to the purchase money would also have been complete. In Laforge v. Magee, 6 Cal. 650, it was held that when the holder of a county warrant had presented it for payment at a time when there was money in the treasury which had been appropriated for that purpose, his right to the money became fixed, and could not be destroyed by a subsequent legislative enactment. The subsequent action of the board of supervisors, purporting to repeal its allowance of the petitioner's claim, could not divest him of his right to the money. McConoughey v. Jackson (Cal.) 35 Pac. 863.

The writ of mandate is issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station (Code Civ. Proc. § 1085); and, unless there is some duty enjoined by law upon the defendant to pay the claim of the petitioner, the writ ought not to issue. Section 82 of the act incorporating the city and county of San Francisco, commonly known as the "Consolidation Act" (St. 1856, p. 169), declares: "No payment can be made from the treasury or out of the public funds of said city and county unless the same be specifically authorized by this act, nor unless the demand which is paid be duly audited as in this act provided, and that must appear upon the face of it." Section 84 of the same act also provides that, before any demand upon the treasury can be paid, it must be presented to the auditor and allowed; and further declares that "the allowance or approval of the auditor or board of supervisors, or any other board or officer, of any demand which, upon the face of it, appears not to have been expressly made by law payable out of the treasury or fund to be charged therewith, shall afford no warrant to the treasurer, or other disbursing officer, for paying the same"; and in section 86, as amended in 1857 (St. 1857, p. 217), it is provided that "every officer who shall approve, allow or pay any demand on the treasury not authorized by this act shall be liable to the city and county individually and on his official bond for the amount of the demand so illegally approved, allowed or paid." Section 95 of the act, as amended in 1857 (St. 1857. p. 218), limits the objects for which the public moneys may be expended by declaring that "payments of demands on the treasury of said city and county may be made for the following objects, and none others"; and, after enumerating these objects, provides in the fifteenth subdivision that "expenditures previously authorized by

the board of supervisors, in the lawful exercise of their powers, for objects other than those specified in the preceding fourteen subdivisions of this section may be paid out of the surplus fund as specified in sections 97 and 98, but not otherwise." Acts giving additional authority for some special expenditure of public moneys have been passed by the legislature from time to time, but the restrictions placed upon the payment of moneys out of the treasury in the original act have never been modified. From these provisions it appears that it is the duty of the treasurer to examine every claim presented to him for payment, and that the mere fact that the claim has been allowed by the supervisors or approved by the auditor does not of necessity impose upon him the duty to pay it. He is charged with a knowledge of the objects for which the public moneys in his custody may be expended; and if a demand is presented to him which on its face appears to be for a claim not authorized by law, or for an expenditure which was beyond the power of the supervisors to incur, he is required to refuse such payment. Upon the face of the demand presented to the treasurer by the petitioner herein it appears that it was for the payment for certain real property purchased from him by the board of supervisors in behalf of the city and county "as a site for a smallpox hospital," and the treasurer was required to determine whether such purpose was within the power of the board of supervisors. If the board of supervisors had the authority to make this purchase, it was his duty to pay the demand; whereas, if they did not have such authority, he was justified in refusing to pay it.

The validity of Von Schmidt's title to the land purchased cannot be inquired into in this proceeding. The condition in the resolution for its purchase, that the purchase should be made if the title was found perfect, was addressed to the committee, and was to be determined upon the examination and report upon the title by the city and county attorney, and his subsequent opinion that the title was in Von Schmidt was not open for revision by the treasurer. The treasurer is not authorized to review the action of the board of supervisors in any matter within their power upon which they have exercised their legislative judgment or discretion. He is not justified in refusing the payment of any demand for an expenditure which the board of supervisors is authorized to make, and which it has allowed and ordered paid. It is only when it directs the payment for an expenditure which it has no power to incur that the treasurer is justified in refusing to make the payment. The rule is so familiar as to be trite that a municipal corporation can exercise only such powers as have been conferred upon it in its charter, or by some general law, and that any person, in dealing with it, is charged