fered by the defendant, we see nothing in the record which would warrant this court in declaring that, as a question of law, their finding is against the evidence.

As we stated in the main opinion, the Supreme Court, in the case from which we have here quoted the language upon which the appellant so implicitly relies, also uses the following language immediately following that quoted: "Indeed, the court is not bound to believe an interested witness against such a presumption if the latter satisfies his mind" -citing section 2061, subd. 4, Code Civ. Proc. The jury and the court appear to have not been satisfied that the evidence overcame the presumption. On the contrary, their minds seem to have been satisfied by the presumption as against the declarations of the witnesses directed against such presumption.

But the learned counsel seems to have formed a total misconception of certain language employed in the main opinion, when he says that "it means that it is conceded by reason of the testimony that Walter Morrissey was about to be arrested on a felony charge, and she (the defendant) desired to prevent it," etc. We were discussing the probable specific reasons which might have induced Mrs. Morrissey to sign the note in consideration of forbearance on the part of the plaintiff to institute a civil action against Walter. This discussion was only in reply to the elaborate argument of counsel to the effect that the evidence on the part of the defendant showed threats by the plaintiff, of a prosecution of Walter for forgery, for which reason alone, he argued, the defendant signed the note. We stated that in our opinion the evidence fairly warranted the inference that she signed the note upon an understanding that the plaintiff would refrain from suing Walter in a civil action; that (if that were true), while it was not necessary to search for specific reasons which thus influenced her, yet it was equally as reasonable as any other deduction from the evidence that she was almost as much in fear of the consequences of a civil as of a criminal action; and that that fact might have been the cause moving her to execute the note in consideration of forbearance upon the part of the plaintiff to sue Walter in the civil courts. It appeared from the uncontradicted evidence in the record that the plaintiff, at the first interview with the defendant, exhibited the 14 notes to the latter, said to her that she did not know persons bearing the names ostensibly subscribed to the notes, and that such names could be found neither on the great register nor the tax roll of the county. While this did not involve upon the part of plaintiff the specific charge of a crime against young Morrissey, the inference was that the transactions represented by the notes were not altogether devoid of fraud of some sort. and we ventured the opinion, therefore, that Mrs. Morrissey, if receiving such an impression,

might be nearly as anxious, under such circumstances, to avoid a civil suit as a criminal proceeding, realizing that in the former the facts would be brought before the public as readily as in the latter proceeding. The plaintiff had a perfect right to sue Walter in a civil action, not alone upon the note executed by him to her, but also the right to sue him for money had and received as to the sums represented by all the other notes, if said notes were in fact fictitious, subject, of course, to the defense of a bar under the statute, or to any other legal defense. If the defendant desired that her son should not be sued in a civil action, and signed the note in dispute in consideration of such an agreement on the part of the plaintiff, we cannot see that it would be particularly material to ascertain what the specific reason was that prompted her desire to prevent the institution of a civil suit against Walter. The defendant might have believed, from her inspection of the notes, or from any other circumstance brought to her notice, that said notes were forgeries, the result of the criminal acts of her son; yet, if the evidence, presumptive and otherwise, fairly warrants the inference that she was moved to sign the note solely because of an agreement upon the part of the plaintiff that she would not bring a civil suit against Walter, the mere fact of her belief that her son had committed a criminal offense would be, it seems to us, immaterial. All that Mrs. Morrissey said about her son having been accused by the plaintiff of committing forgery, and that the latter would prosecute him for the crime, was denied by Miss Keating. The jury, as stated in the main opinion, seem to have paid no attention to the testimony of the defendant. But it is enough for us to be satisfied that the evidence, both direct and circumstantial, fairly justifies the conclusion that the consideration for which the note was signed was based upon an understanding that the plaintiff would forbear suing Walter in a civil action; or that the evidence, in the minds of the jury and the judge trying the case, was not sufficient to overcome the presumption of a valid consideration; and that the record before us is not such as would sustain a conclusion by this court that, as a matter of law, the evidence is too weak to support the verdict of the jury and the findings of the court.

The petition for a rehearing is denied.

We concur: CHIPMAN, P. J.; BURNETT, J.

Error to District Court, Wyandotte County; J. McCabe Moore, Judge.

Action by John G. Meek against the Metropolitan Street Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Rush L. Fissette and Bird & Pope, for plaintiff in error. Miller, Buchan & Miller, for defendant in error.

PER CURIAM. Action brought by John G. Meek to recover damages from the Metropolitan Street Railway Company for personal injuries alleged to have been sustained by him while riding in a street car of defendant. The car, running at a speed of about three miles an hour, ran into one just ahead of it going in the same direction, and he claims that the resulting jar injured his back and kidneys. Under the testimony there was a fair question of fact as to whether he was really hurt by the collision, and it was settled by a verdict in favor of the defendant.

The inquiry as to the plaintiff's ability to give bond for costs, about which complaint is made, could not have been prejudicial, especially after the full examination on the same subject which had been previously made by both parties. The hypothetical questions objected to were properly allowed. United Commercial Travelers of America v. Barnes (decided May 11, 1907) 91 Pac. 293. No error was committed in excluding the question propounded to plaintiff whether the conductor asked him to write his name on a slip of paper, nor do we find any good reason to complain of the rulings of the court in instructing the jury.

Judgment affirmed.

(76 Kan. 301)

DENDY et al. v. FIRST NAT. BANK OF COBLESKILL, N. Y.

(Supreme Court of Kansas. July 5, 1907. Rehearing Denied Sept. 21, 1907.)

1. CHATTEL MORTGAGES-VALIDITY-REPLEVIN OF ASSIGNEE.

Where the owner of personal property takes a mortgage thereon from one aving no interest therein, securing an accommodation note between the same parties, and assigns the note and mortgage, the fact that the mortgagor never had any real interest in the property constitutes no defense to an action brought by the assignee to replevin the property under the mortgage, whether the defendant be a stranger to the transaction or a claimant under a party to it.

2. SAME INACCURATE DESCRIPTION.

In an action to recover the possession of personal property under a chattel mortgage in which it is inaccurately described, where the plaintiff relies upon the record as imparting constructive notice, such erroneous description is not fatal to a recovery, if in spite thereof the instrument gives upon its face sufficient information from which, by the aid of reasonable inquiry, the property intended can be identified; and whether that is the case is ordinarily a

question of fact, to be determined from all the circumstances of the case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 87.] (Syllabus by the Court.)

Error from District Court, Reno County; P. J. Galle, Judge.

Action by the First National Bank of Cobleskill, N. Y., against W. F. Dendy and H. O. Peck. Judgment for plaintiff. Defendants bring error. Affirmed.

A. M. Harvey and John V. Abrahams, for John D. Milliken and plaintiffs in error. Whiteside & Malloy, for defendant in error.

MASON, J. The First National Bank of Cobleskill, N. Y., recovered judgment upon a verdict in a replevin action brought by it against Dendy & Peck for the possession of a number of cattle, and the defendants prosecute error.

The plaintiff claimed as assignee of a chattel mortgage executed by L. M. Hyre to Zeb F. Crider Commission Company. Three defenses were interposed: (1) That the mortgage was void; (2) that the cattle replevied were not in fact those referred to in the mortgage; and (3) that, even if they were, the description was so defective that the record did not impart constructive notice of the fact-it being admitted that the defendants purchased them without actual notice of the mortgage. The attack upon the validity of the mortgage is based upon the circumstance that Hyre, the nominal mortgagor, never had any real interest in the cattle. They were owned by the commission company, of which Hyre was an employé. He signed the note and mortgage at the request of the company, and for its purposes. The defendants argue that, as IIyre had no title, a mortgage executed by him could create no lien. There was an effort on the part of the plaintiff to show that as a part of the transaction the company gave IIyre a bill of sale of the cattle, thereby vesting in him the legal title as a basis for his making the mortgage. Probably the execution of this bill of sale was not established; the reference to it in the evidence falling short of technical proof of that fact. But the omission is not important. The company was the actual owner of the cattle. In accepting and assigning the mortgage, it recognized Hyre as their formal owner-as the holder of the legal title. The execution of a bill of sale could add nothing to the force of such recognition. By the purchase of the note the bank acquired a valid lien on the cattle. That the mortgage secured accommodation paper was not a matter of any concern to the parties to this litigation.

The question of the identity of the cattle replevied with those mortgaged was fairly submitted to the jury and their verdict is conclusive. It is true that a representative of the commission company was permitted

to testify to matters in this connection of which he had no personal knowledge, and technical error may have been committed in this respect. But the sources of his information were fully brought out, and upon consideration of the entire record we see no reason to believe that any substantial prejudice to the defendants could have resulted. The description which the mortgage gave of the cattle was defective. They were described as kept at a particular ranch; whereas, they were in fact in another part of the county. Whether, notwithstanding this partial misdescription, the mortgage still gave sufficient information by which the cattle could with reasonable inquiry have been identified, was a question for the determination of the jury. 6 Cyc. 1037.

Although complaint is made of the instructions, we think they fairly presented this and the other questions involved, and that no ground is shown for disturbing the verdict. The judgment is affirmed. All the Justices concurring.

(33 Utah, 8)

RICHARDS v. SMITH. (Supreme Court of Utah. Aug. 24, 1907. On Rehearing, Sept. 20, 1907.)

1. ARBITRATION AND AWARD-ARBITRATION AGREEMENT-CONSTRUCTION.

An agreement, submitting to arbitration a "controversy existing between the parties," wherein plaintiff claimed that defendant was indebted to him in the sum of $55,500, as damages for not carrying out a certain agreement made between plaintiff and H., deceased, which damages defendant denied, constituted a submission of the question of the existence of the contract and the cause of action between the parties as well as the amount of damages plaintiff was entitled to recover, if any.

2. SAME AWARD-FILING - DUTY OF ARBI

TRATORS-STATUTES.

Rev. St. 1898, § 3223, provides that, when a submission is made an order of court, the arbitrators may be compelled to make an award which may be enforced as a judgment, and section 3227 declares that the award must be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties; that, when the submission is made an order of court, the award must be filed with the clerk, and a note thereof made on the register. Held, that it is no part of the duty of arbitrators to file their award with the clerk; such filing being required by the parties only when the party filing the award desires it to have the effect of a judgment.

ment, but, if the submission is not made an order of the court, it may be revoked at any time before award. Held, that the effect of a failure to file a submission in court before the hearing was only to permit the parties to revoke the submission, and prevent the court from acquiring jurisdiction until filed, and did not affect the right of the arbitrators to proceed to a hearing.

Appeal from District Court, Third District; before Justice T. D. Lewis.

Action by Joseph S. Richards against Joseph F. Smith. From the judgment entered on an award of arbitrators, plaintiff appeals. Affirmed.

This is an appeal taken on the judgment roll, and is from a judgment entered on an award. The written submission of arbitration upon which the award is based, omitting the title of the court, is as follows: "Pursuant to chapter 40, tit. 73, entitled 'Arbitration,' Rev. St. Utah, 1898, the above-named parties have agreed to submit, and by these presents do submit, a certain controversy existing between them, wherein said Joseph S. Richards, plaintiff, claims that said defendant is indebted to him in a sum of money, to wit, $55,500.00, as damages for not carrying out a certain agreement made between him and the late Bishop Edward Hunter, in regard to the purchase and sale of a certain piece of land, and which said damages said defendant denies; and they each of them have agreed to submit the question to arbitration to four disinterested persons, with privilege in said four persons to select a fifth at any time in the course of said proceedings that they may elect to do so. The four arbitrators selected and chosen are as follows: L. S. Hills and James Sharp, on the part of plaintiff, and W. W. Riter and John R. Barnes, on the part of defendant, and they four, with a fifth one above provided for, in their election, are to hear the evidence and determine the cause; and the judgment of the majority of them, whether of the four or the five, shall be binding and final upon the parties hereto. It is hereby agreed by the parties hereto that the four parties above named as aforesaid may select a fifth, either after they have heard the testimony, and find that the majority cannot agree, or they may select a fifth before they go into the testimony, and he may sit with them, and the decision of the majority shall be binding. It is hereby stipulated and agreed that this agreement be entered as an order of the district court. This arbitration shall take place on the 30th day of September, 1902, and shall be concluded on or before the 1st day of December, 1902. The arbitrators may have all the powers given in said chapter aforesaid to them, and they shall act in accordance therewith. In witness whereof the parties have hereunto set their hands and seals this 6th day of August, A. D. 1902. Jos. S. Richards. Jos. F. Smith."

The submission was duly acknowledged, and, on October 2, 1902, filed with the clerk

of the Third judicial district court for Salt Lake county. The arbitrators were sworn before a notary public and subscribed to an oath in writing, which was annexed to the submission and filed therewith. On October 14, 1902, the arbitrators made their award in writing, which, omitting title of court and cause, recited as follows: "Decision by Arbitrators. On the 6th day of August, 1902, the above-named parties entered into an agreement, pursuant to chapter 40, tit. 73, entitled 'Arbitration,' of the Revised Statutes of Utah of 1898, by which the abovenamed parties agreed to submit to arbitration a certain controversy existing between them, wherein said Joseph S. Richards, plaintiff, claimed that Joseph F. Smith, trustee in trust, defendant, was and is indebted to him in the sum of $55,500.00 as damages for not carrying out a certain agreement made between him, the said Joseph S. Richards, and the late Bishop Edward Hunter in regard to the purchase and sale of a certain piece of land, which said damages the said defendant denied. At the same time each of said parties agreed to submit the question to arbitration before four disinterested persons, with the privilege in said four persons to select a fifth at any time in the course of said proceedings as they might elect to do. That said four persons selected for arbitrators were L. S. Hills and James Sharp, on the part of the plaintiff, and W. W. Riter and John R. Barnes, on the part of defendant. That those four persons, on the 30th day of September, 1902, held their first meeting, and agreed then and there not to then select a fifth person, but to hear the evidence themselves, and, if thereafter they could not agree, then to make a selection of a fifth arbitrator. That on the said date plaintiff, Joseph S. Richards, introduced his case and made a statement thereof to said arbitrators. Adjournment was then taken until the 13th day of October, 1902, when they all met again, and, the witnesses being sworn, testimony was given on both sides. The parties having submitted their testimony, and the case being closed, the undersigned arbitrators took the same under advisement, and on this 14th day of October, 1902, make, conclude, and decide in favor of the defendant that there is

cause of action. [Signed] L. S. Hills. James Sharp. W. W. Riter. John R. Barnes."

On April 18, 1904, the award was filed with the clerk of said court, and on the same day notice thereof served upon the appellant, plaintiff below. On April 22, 1904, on motion of appellant, the court made an order extending the time 20 days in which to file objections to the award and to the entry of judgment thereon. Extensions were granted from time to time for the purposes aforesaid until August 15, 1904. On August 12, 1904, appellant filed a motion to vacate the award. This motion was denied by the court April 9, 1906, and on the 29th day of September,

1906, judgment was, by order of the court, duly entered on the award.

P. T. Farnsworth, Jr., and C. S. Varian, for appellant. O. W. Moyle, for respondent.

MCCARTY, C. J., after making the foregoing statement of the case, delivered the opinion of the court.

Appellant contends that "the award is void because beyond the terms of submission, in this, the arbitrators undertook to determine the right of action as matter of law, which was not submitted but conceded or reserved by the parties." That is, it is urged by appellant that the submission on its face shows that the parties conceded that the contract with respect to the sale of land existed between them, and that there was a breach of the contract, and therefore the only question for determination submitted to the arbitrators was the amount of damages. From these premises it is argued that the appellant, on the face of the submission, was entitled to at least nominal damages, and that, when the arbitrators undertook to determine whether or not a cause of action existed in favor of appellant, they exceeded their authority. As stated by counsel for appellant in their brief, the submission takes the place of a complaint and answer and contains the admissions as well as the allegations of the parties. The "admissions" and "allegations" presenting the questions and issues submitted to the arbitrators were that the "parties have agreed to submit a certain controversy existing between them, wherein said Joseph S. Richards, plaintiff, claims that said defendant is indebted to him in a sum of money, to wit, $55.500.00, as damages for not carrying out a certain agreement made between him and the late Bishop Hunter, in regard to the purchase and sale of a certain piece of land, and which damages said defendant denies." The foregoing recital in the submission shows that a certain controversy was submitted. The general rule, of course, is that submissions to arbitration are to be liberally construed, and that "courts do not travel out of their way for the purpose of overturning awards, but, on the other hand, will refrain from exact and technical interpretation, and will indulge every reasonable presumption, whenever there is any room for such indulgence, in favor of the finality and validity of the award." 3 Cyc. 673. So construing the language containe:1 in the written submission, we are of the opinion that it includes the questions of the existence of a contract and breach thereof, as well as the question of damages and the amount, if any, sustained; and that therefore it was within the authority of the arbitrators to determine the question whether or not a cause of action existed. It is quite true that, if the language is to be construed technically, and is to be interpreted under the rules of pleadings, there is some force to

the argument that the denial portion of the written submission is simply a denial that the plaintiff was entitled to $55,500 damages. Giving it such a construction, the denial would, in effect, amount to an admission that the defendant was indebted to the plaintiff in a sum less than $55,500. But upon what theory is the submission to be construed most strongly against the defendant? It was plaintiff's document or pleading as much as it was the defendant's. Whatever was uncertain or incomplete about it was plaintiff's uncertainty as much as the defendant's. However, we do not see anything in the writing to warrant the conclusion that the parties intended to stipulate that the contract existed, or that there was a breach thereof on the part of the defendant or the late Bishop Hunter, or that either of them was indebted to the plaintiff in any sum on account thereof. Such was not the evident intention of the parties as expressed by the obvious and natural meaning of the language used by them. The writing recites that "plaintiff claims" the defendant is indebted to him in the sum named for not carrying out a certain contract. No words are contained in the writing from which it could be fairly implied that the defendant admitted or conceded any part of the claim. Respond

ent by his general denial clearly negatives any present liability, and this denial is also a denial of any liability on the part of Bishop Hunter. Such is what the parties evidently intended it for and meant by it. In ascertaining the meaning and intention of the parties as expressed by the writing, we must not separate portions of it and construe parts most strongly against one or the other of the parties, but must consider and construe the writing as a whole. When so considered, we have no doubt that the finding of the arbitrators is within the issues submitted. 3 Cyc. 604.

Appellant's next contention is that the arbitration was not completed until the award was filed with the clerk, and therefore was not concluded within the time specified in the submission. The arbitrators were not required, under the statutes, to file their award with the clerk. Section 3223 of the Revised Statutes of the state of Utah, 1898. provides that, when the submission is made an order of the court, "the arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment." And section 3227, Rev. St. 1898, provides that "the award must be in writing, signed by the arbitrators or a majority of them, and delivered to the parties." An award is defined as "the judgment or decision of arbitrators or referees in a matter submitted to them." 1 Bouv. Law Dict. 205; 1 Words & Phrases, 656. In 2 A. & E. Ency. Law (2d Ed.) 719, it is said: "The judgment of the arbitrator and also the paper on which it is written are called an 'award.'" Therefore,

it is manifest, from the very nature of an award, that it must be made and concluded before it can be filed. Section 3227, supra, provides that "when the submission is made an order of the court, the award must be filed with the clerk and a note thereof made on his register." No time is fixed by the statute when this must be done. It is evident, however, as we have suggested, that it cannot be done before the award is made and concluded by the arbitrators, because before it is so made and concluded there is no award to file. The purpose of making a submission to arbitration an order of the court is to give the award, when filed with the clerk and entered in the judgment book, as provided in section 3227, Rev. St. 1898, the force and effect of a judgment. When the arbitrators signed the award and delivered it to the parties, they did all they were authorized or empowered to do under the statute. It then devolved upon the parties themselves, if they, or either of them, desired the award to have the force and effect of a judgment, to file it with the clerk and proceed in the manner pointed out in section 3227. As neither the statute nor the terms of the submission required the parties to file the award with the clerk within a specified time, the mere delay in filing, which either of the parties could have obviated, did not deprive the court of jurisdiction to enter the judgment appealed from.

And furthermore, section 3228, Rev. St. 1898, provides upon what grounds a court may vacate an award, and delay in filing an award is not one of the grounds therein specified. Boone v. Reynolds, 1 Sug. & R. (Pa.) 231; Patrick v. Batten, 123 Mich. 203, 81 N. W. 1081.

The judgment is affirmed, with costs.
STRAUP, and FRICK, JJ., concur.

On Rehearing.

FRICK, J. A rehearing is requested in this case upon the ground that we failed to specially consider and pass upon the assignment that the district court was without jurisdiction, for the reason that the arbitrators held a session and heard the statement of appellant's case before the agreement of submission was filed in court and before the clerk made the entries required in a statutory arbitration by section 3223, Rev. St. 1898. In view that we sustained the judgment, and, further, directly held that the court had jurisdiction, we deemed the point now made by counsel as necessarily included within our decision. In deference to counsel's request, however, we have concluded to briefly state our reasons for holding that the court had jurisdiction notwithstanding the fact that the hearing may have been entered upon before the submission agreement was actually filed in court. This we have concluded to do without the formality of a rehearing.