This was an action brought in the district court of the Third judicial district of Utah by Henry C. Haarstick against Moylan C. Fox, executor of Sarah M. McKibben, deceased, to recover damages for the refusal of the defendant to assign and transfer to the plaintiff 1,414 shares of the capital stock of a corporation known as the St. Louis & Mississippi Valley Transportation Company, as called for by a contract subsisting between the plaintiff and Mrs. McKibben during the lifetime of the latter.
At the trial a jury was waived, and the case was tried by the court. The trial judge made certain findings of facts and conclusions of law as follows:
A motion for a new trial was made and overruled, judgment was entered, and an appeal was taken to the supreme court of the territory of Utah (33 Pac. 251), from whose judgment, affirming that of the court below, an appeal was taken to this court.
Chas. W. [156 U.S. 674, 676] Bennett and John A. Marshall, for appellant.
F. S. Richards, Arthur Brown, and Given Campbell, for appellee.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.
The appellant's contentions are that the trial court erred in failing to make an express finding as to certain defenses set up in the defendant's answer, which are alleged to have constituted new matter in avoidance of the contract declared on by the plaintiff, and to have been sustained by evidence, and that the supreme court of the territory erred in approving that action of the trial court by affirming its judgment.
The defensive matter adverted to was thus set forth in the defendant's answer:
Claiming that this paragraph of his answer presented a distinct, affirmative defense, the appellant contends that, without a formal replication thereto, it was put in issue by virtue of an enactment by the legislature of Utah, which provides that 'every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party.' 2 Comp. Laws Utah, 3248. With a material issue thus presented, the appellant claims that the trial court erred doubly in not making a finding on the same and in not finding that it was sustained by the evidence.
In failing to find at all upon a material issue raised by the pleadings it is said that the court disregarded certain provisions of the laws of Utah, which are in the following terms:
As it appears in the present record that the defendant did not fail to appear, nor consent in writing or by oral consent in court to waive a finding of the issue in question, and as the court made written findings on other issues, it is claimed that the error of the court in failing to make a finding is thus made manifest.
On the part of the appellee it is claimed that the issue presented in the paragraph of the answer heretofore cited was not a material one, containing new matter in avoidance of the plaintiff's claim, but was essentially a mere traverse, equivalent to the general issue; that, whether material or not, it [156 U.S. 674, 678] was not sustained by any substantive evidence; and that, therefore, there was no error in the action of the trial court, whose findings substantially covered all the real issues in the cause. The appellee cites as pertinent a decision of the supreme court of California, from the Code of which state the laws of Utah in question in this case are said to have been taken:
The record discloses the affirmative findings of the trial court, which, of themselves, fully warrant the conclusion of law based upon them, that the plaintiff was entitled to recover. No assignments of error on exceptions taken ask or [156 U.S. 674, 679] empower us to review those findings. If, then, those findings are to be accepted as justified by the evidence, it is difficult to see how the defendant was injured by the failure of the court to pass, in express terms, on those averments of the answer now urged. If, indeed, it be indisputably true, as so found, that by written correspondence between the parties Mrs. McKibben agreed to sell and the plaintiff to buy a stated number of shares of stock at a fixed price, and that the plaintiff, in due time and manner, tendered the purchase money, and demanded a delivery of the stock, and that the defendant, as executor of Mrs. McKibben, declined to receive the purchase money and to deliver the stock, those allegations of the answer which are now relied upon must be deemed to have been thereby negatived. In other words, the plaintiff's affirmative case is wholly inconsistent with the truth of the defendant's case, and the conclusive establishment of the truth of the former is necessarily a complete negative of the case asserted by the defendant.
This was the conclusion reached by the supreme court of the territory, which disposed of the question in the following terms: 'It is contended that the court erred in failing to find facts on the question of fraud set up in the answer. The court found separately and specifically that the contract set up in the complaint was sustained by the evidence. This finding necessarily negatives any fraud as alleged, and is sufficient to sustain the judgment.'
It is true that this ruling of the supreme court of the territory does not, even in a question of practice arising under the local law, preclude this court from reviewing it, as would a decision of a state supreme court in similar circumstances; but, unless a manifest error be disclosed, we should not feel disposed to disturb a decision of the supreme court of a territory construing a local statute. So far from discovering manifest error in that ruling, we concur with the supreme court of the territory in their disposition of the question.
The opinion of the supreme court of the territory, disclosed in the record, further shows that that court considered at length the evidence in the entire case, as well that sustaining the [156 U.S. 674, 680] plaintiff's claim as that relied on by the defendant as showing fraud, and concurred in and affirmed the findings and judgment of the trial court. But we do not regard any aspect of the case as open for our consideration, except the errors assigned to the action of the supreme court of the territory in ruling that the findings of the trial court sufficiently embraced the issues presented by the pleadings.
The judgment of the supreme court of the territory of Utah is hereby affirmed.