(190 P.)

4. Master and servant 417(7)-Amount of | The decedent, age 20 years and 10 months, compensation awarded not reviewable.

Where the amount of compensation awarded by the Industrial Commission is sustained by some substantial evidence, it is not the province of reviewing court to disturb it.1

Petition by Robert J. Eames and wife, as father and mother and Lucy K. Eames, to the Industrial Commission of Utah for an award against Geo. A. Lowe Company, employer. Award granted. Application for rehearing denied, and the employer and the Etna Life Insurance Company, insurer, bring certiorari to the Industrial Commis

sion. Award sustained.

At

had assisted his parents in doing the gen-
eral farm work, except when occasionally
employed elsewhere, at which times he would
contribute his earnings to the family sup-
port, including apparel for himself and at
times for other members of the family.
the time of the accident in which decedent
tiff Geo. A. Lowe Company and had been
was killed he was an employé of the plain-
earning under said employment $3.25 per
day 6 days in a week, for a period of about
3 months. During the time he was thus
engaged with the Geo. A. Lowe Company he
had obtained his lodging and meals without
charge at claimants' home. On account of

De Vine, Stine & Gwilliams, of Ogden, for his absence from work on the farm it was plaintiffs.

arranged between himself and the claimants

Dan B. Shields, Atty. Gen., and Chez & that he should contribute his earnings in Barker, of Ogden, for defendant.

CORFMAN, C. J. On the 27th day of December, 1919, George W. Eames, of Harrisville, Utah, met his death by reason of an accident arising out of and in the course of his employment with the plaintiff Geo. A. Lowe Company. The plaintiff Ætna Life Insurance Company was the insurance carrier of Geo. A. Lowe Company.

payment of other help employed to assist in doing the farm work. As to the exact amount in dollars and cents derived from, and the full extent of, the dependency of claimants upon the decedent, the record is not certain and clear, but that they were dependent upon and that they received practically all of decedent's earnings and the benefits of his labor cannot be doubted from a reading of the evidence. All that may be Under the provisions of chapter 100, Laws said in this connection is that decedent was of Utah 1917, as amended by chapter 63, at the time of the accident capable of and Laws of Utah 1919, Robert J. Eames and was earning $3.25 per day, that all of his life Lucy K. Eames, the father and mother of he had contributed his labor and earnings to said George W. Eames, filed their petition the support of claimants, and that there is for compensation with the Industrial Com- substantial evidence in the record tending mission of Utah, claiming that they were to show that claimants were dependent upon dependents of the decedent. After the issues decedent's labors and earnings for the supwere joined and a hearing had, the said port and maintenance of themselves and the commission made an award against the plain-members of their family. Dependency in this tiff Geo. A. Lowe Company, granting to the class of cases has been universally held to be said claimants compensation at the rate a question of fact to be determined by the of $11.25 per week for a period of 284 weeks, commission, not the reviewing court. Dosbut not to exceed $3,199. After an applica-ker's Compensation Law, § 170. tion for a rehearing, which was denied by the commission, the proceedings were brought to this court for review under a writ of certio

Under the facts and circumstances of this case as disclosed by the record, we think partial dependency of the claimants was fully established within the purview and meaning of our statute. Further, the deci

rari sued out by the plaintiffs. They contend that the award made by the commission should not be sustained: First, forsion of the commission was final and concluthe reason that the evidence was insufficient to establish the dependency of the claimants; secondly, that the commission failed to make any finding of the average weekly wage of decedent; and, thirdly, that the award made

was excessive.

[1, 2] The record shows that claimants are the parents of the decedent. They owned and lived upon a farm heavily incumbered by a mortgage. Their family included two daughters, under age, the decedent and his grandparents, all of whom reside gether and were dependent upon the income from the farm for the necessaries of life.

to

1 EvaLs v. Ind. Com. of Utah, 174 Pac. 825; Reteuna v. Ind. Com. of Utah, 185 Pac. 535.

sive on this question as well as all other questions of fact where there is some substantial testimony in the record to sustain it. Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533; Herrick Case, 217 Mass. 111, 104 N. E. 432; In re Kelly's Case, 222 Mass. 538, 111 N. E. 395; Walz et al. v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703.

[3] The next question presented by the plaintiff is whether or not the failure of the commission to make a finding as to the daily Wage of decedent at the time of the acci

dent invalidates the award.

Having established partial dependency upon the decedent, under the provisions of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

section 3140, subd. 3, as amended by chapter | Both the matter of dependency and the 63, Laws of Utah 1919, claimants were en- amount to be awarded were questions of titled to "60 per cent. of the average weekly wages, but not to exceed the maximum of $16.00 per week, and to continue for all or such portion of the period of six years after date of the injury as the commission in each case may determine, and not to amount to more than a maximum of $5,000.00."

[4] Lastly, the plaintiffs complain that the award made is excessive. They assign many reasons in support of their contention. We will not pause to discuss them in detail. As we view the record under consideration, the award made by the commission did not exceed the powers granted to it by the statute. | MAN, JJ., concur.

1. Sales 288 (2)-Purchaser held not bound by card signed showing goods were satisfactory.

notice being mailed as required by law, held harmless in view of circumstances.

7. Appeal and error 1064(4)-Poorly word. ed instruction held harmless.

Where in view of the evidence the jury could not have been misled to appellant's prejudice by a poorly worded instruction respecting waiver, any error therein must be held harmless.

In seller's action for the purchase price of a harvesting machine, defended on the ground that it failed to work as warranted, a satis- Appeal from District Court, Box Elder faction card signed by defendant without read-County; J. D. Call, Judge. ing it, upon representation of plaintiff's expert that it only showed the latter's presence, and which stated that the machine worked satisfactorily, was of no more solemnity than such an oral declaration of defendant would have been, and did not bind him where the facts were otherwise as shown by the expert's own statement, buyer's complaints, and expert's return to operate the machine.

2. Sales285 (4)-Waiver of notice of breach of warranty by taking charge of setting up warranted machine.

The rule that a buyer impliedly accepts a warranted machine if he fails to report, in the time required by the warranty, that the machine fails to work, does not apply where the seller by delivering the machine unassembled and taking charge of assembling and trying it out in the buyer's field waived such notice.1

3. Sales 288 (2)-Buyer's keeping machine more than contract five days' trial limit held to be by seller's consent.

In a seller's action against buyer, a contention that the buyer retained the harvesting machine more than the five days allowed for trial under the terms of warranty is not well taken, where it was shown that the harvester was only operated while seller's employés were on the buyer's ranch overseeing its operation, since any extended time was by seller's con

sent.

Action by the Consolidated Wagon & Machine Company against H. G. Wright. Verdict and judgment for defendant, and plain. tiff appeals. Affirmed.

W. J. Lowe, of Brigham, and Morris & Cal-
Hster, of Salt Lake City, for appellant.
Walters & Harris, of Logan, and Le Roy B.
Young, of Brigham City, for respondent.

FRICK, J. The plaintiff commenced this action against defendant to recover the purchase price of what is called a Massey-Harris harvester. In its complaint the plaintiff in substance alleged that on the 3d day of May, 1916, it sold to the defendant a harvester for the sum of $950, which sum the defendant agreed to pay as follows: $60 when the harvester was delivered, $450 on November 1, 1916, and the remainder on November 1, 1917-that said harvester was sold pursuant to the terms of a certain contract and war

ranty which are attached to and made a part of the complaint; that the defendant had failed to comply with the terms of said contract and had failed to pay the purchase price of said harvester, or any part thereof, all of which was due, together with interest, etc. The defendant filed an answer to said complaint in which he admitted the execu4. Sales 287 (6)-Seller waived return of tion of the contract attached to plaintiff's unsatisfactory machine by refusal to accept it. complaint and denied that he was indebted Where buyer claimed the machine purchas- to the plaintiff in any sum or amount. The ed did not fulfill its warranty, and was notified defendant, as an affirmative defense, also rethat seller would not receive it, the seller waiv-lied on the terms of the warranty which was ed any right to insist that the buyer return a part of the contract of sale, and to which we shall more specifically refer hereinafter.

the machine.

5. Sales196-Waiver of initial payment on and averred that said harvester did not fulprice by delivery without it.

fill the terms of said warranty, stating the facts with respect thereto, and, in effect, further averred that the plaintiff had waived certain requirements of said warranty to which we shall more fully refer hereafter.

Where a seller delivered a machine to the buyer, assembled it on his premises and tested it out without exacting first payment, and it proved unsatisfactory, the seller waived the agreement for payment at the time of delivery. The case was tried to a jury, which return6. Appeal and error 1050(4)—Irregularity | ed a verdict in favor of the defendant, and in evidence of notice of defect of goods held harmless.

In seller's action against buyer for the price of a machine which defendant claimed did not fulfill a warranty, irregularity in permitting in evidence carbon copy of buyer's notice to seller of defect, without accounting for the

1 Consolidated Wagon & M. Co. v. Barben, 46 Utah, 377, 150 Pac. 949.

the plaintiff appeals.

The plaintiff has assigned, and in its brief relies upon the following errors: (1) That the court erred in refusing to direct a verdict in favor of plaintiff; (2) that the court erred in its instructions to the jury; (3) that it erred in refusing to charge as requested by plaintiff; and (4) that it erred in the admission and exclusion of certain evidence

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and in certain other rulings during the [ Wagon & Machine Company had not waived course of the trial.

the terms thereof, and hence the defense that Preliminarily, plaintiff's counsel contend was there set up could not prevail. Counsel that the defendant had failed to plead a for plaintiff insist with much vigor that the waiver, and hence its demurrer to that part Barben Case and the cases therein cited in of defendant's answer should have been sus- its support control the case at bar. We have tained. It is not necessary to enter upon an carefully read and considered all of the evianalysis of the pleadings. It must suffice to dence in the case at bar, and, after doing so, say that the facts constituting the alleged are unable to yield assent to counsel's conwaiver were sufficiently pleaded to authorize tention. The controlling facts in this case, the admission of the evidence relating there- stating them as briefly as possible, in subto, and hence this contention cannot prevail. stance are these: The defendant, in May, [1, 2] Proceeding, now, to a consideration 1916, purchased from the plaintiff what in of the other errors assigned: The plaintiff the record is designated as a Massey-Harris relies upon the terms of the contract of war-harvester, hereinafter, for convenience, callranty pursuant to which the harvester in ed harvester, which was a combined reaper question was sold and delivered. The warranty, so far as material here, reads as follows:

and thresher. The harvester was sold pursuant to the terms of the warranty hereinbefore set forth. While in the contract of sale

"It is warranted that the machinery and the harvester was sold f. o. b. Salt Lake City, goods hereby sold are made of good material, it was in fact delivered to the defendant at and durable with good care, if properly oper- the town of Garland, in Box Elder county, ated by competent persons with sufficient steam, Utah, where, according to the evidence, the gasoline, horse, or other power, as the case may plaintiff conducted a branch house or branch be, and the printed rules and directions of this office. The harvester was delivered in boxes company and of the manufacturer are intelli- and was not assembled or "set up" in workgently followed. If by so doing, after trial ing condition. About the 1st of August, 1916, of five days by the second parties, said machinery or other articles shall fail to fulfill the and some time before defendant's grain was warranty, written notice thereof shall at once ripe, and at about the time the harvester be given to the company at Salt Lake City, was delivered at Garland, the plaintiff sent Utah, and also to the agent through whom one D. W. Pearson from its principal office received, stating in what parts and wherein it at Salt Lake City, who in the record is desfails to fulfill the warranty, and a reasonable ignated as one of plaintiff's "general extime shall be given to said company to send perts," to assemble or "set up" the harvester. a competent person to remedy the difficulty, the Mr. Pearson assembled the parts, "set up," second parties rendering necessary and friendly assistance, said company reserving the right as he called it, the harvester, but, in view to replace any defective part or parts, and that defendant's grain was not yet ripe, he if then the machinery cannot be made to fill the did not remain at defendant's ranch any warranty the part that fails is to be returned longer than was necessary to complete the by the second parties free of charge to the assembling of the harvester. Pearson, howplace where received and the company notified ever, returned to the ranch on the 14th of thereof, and at the company's option another August, at which time the grain was ripe and substituted therefor that shall fill the war-directed and superintended the operation of ranty, or the notes and money for such part immediately returned and the contract rescinded to that extent and no further claim made on the company. Failure to so make such trial or to give such notice in any respect shall be conclusive evidence of due fulfillment of warranty on the part of said company and that the machinery is satisfactory to the second party, and the company shall be released from all liability under the warranty. Any assistance rendered by the company, its agents or servants, in operating said machinery or in removing any actual or alleged defects, either before or after the five days' trial, shall in no case be deemed any waiver of, or excuse for, any failure of the second parties to fully perform the conditions of this warranty.

the harvester. Up to this point there is no conflict in the evidence. From this point on, however, the testimony of plaintiff's and defendant's witnesses differ very materially on some points. The jury, were, however, justified in taking the version of defendant's witnesses as correct, and hence in this statement we shall follow the testimony of the defendant's witnesses. The testimony of defendant and his witnesses is to the effect that when Pearson undertook to operate the harvester it failed to fulfill the terms of the warranty in almost every particular. Pearson remained at defendant's ranch from the afternoon of the 14th to the morning of the 16th of August, during which time he direct

A contract and warranty in terms precise-ed and superintended the operation of the ly like the one in question here was passed on by this court in the case of Consolidated Wagon & M. Co. v. Barben, 46 Utah, 377, 150 Pac. 949. It was there held that the defend- | ant, Barben, had failed to comply with the terins of the warranty, and that Consolidated

harvester, and during all of which time, according to the statements of defendant's witnesses, the harvester failed to do good work, but wasted much grain. Pearson left the ranch on the morning of the 16th, but, at the request of the defendant, returned again

(190 P.)

on the 17th. Pearson himself so states. Mr. topped from explaining or denying. The Winters, who is designated as plaintiff's plaintiff was not deceived nor misled; neither manager of the branch house at Garland, did it change its position by reason of any went to defendant's ranch on the 17th, and statement or admission contained in the card. Pearson returned with Winters to Garland. Indeed, according to the expert's own stateA few days after Pearson had left the ranch ments, on the very day he left the ranch two other employés of plaintiff came to the with the card the defendant followed him to ranch, and, as the defendant and his witness- Garland and insisted that the harvester was es say, brought some castings to replace bro- not working satisfactorily, and the expert reken ones. The harvester, however, would not turned to the ranch to make it work. Morework. The defendant also testified that Mr. over, after that two others of the plaintiff's Winters, the manager of the branch house at employés went to the ranch for the same Garland, said that if the grain were his he purpose. At most, the card was of no greatwould save it by obtaining a header to cut er solemnity than a receipt or a declaration it. According to the defendant's statement, on the part of the defendant would have after the expert Pearson and the others of been which he had a right to explain, and it the plaintiff's employés had all failed to was for the jury to say whether his statemake the harvester do satisfactory work, he ments under oath or the declaration in the obtained a header, and by that means har- card was correct. vested his grain. Plaintiff contends, however, that the defendant signed a satisfaction card and delivered it to the expert Pearson on either the evening of the 15th or the morning of the 16th of August, wherein the defendant stated that the harvester was operating to his entire satisfaction. The defendant, and his witness who was present at the time the defendant signed the card, testified, however, that the defendant did not read the card or know its contents, but signed it, as he said, upon the representation of Mr. Pearson that it only contained a state ment that Mr. Pearson was present at defendant's ranch and the time during which he was present. At all events, the defendant and all of his witnesses emphatically deny that the harvester was working satisfactorily as represented in the card or that it had fulfilled the warranty in any respect. In this conclusion they, to some extent at least, are indirectly supported by Mr. Pearson himself and by others of plaintiff's witnesses for the reason that, if the harvester had been operating satisfactorily on the evening of the 15th or on the morning of the 16th, when Mr. Pearson left the ranch, why should he return again on the 17th to attempt to overcome some defects? Again, if the harvester were working satisfactorily, then why, according to defendant's statement, should Winters, the branch house manager, advise the defendant to cut his grain with a header, which was in fact done? True, Winters denies this, but the jury had a right to accept defendant's statement in that regard. In this connection counsel, however, insist that the court, nevertheless, erred in permitting the defendant to explain the signing of the satisfaction card. It is contended that, having signed the card, defendant was estopped from explaining or contradicting the statements contained in the card. In our judgment this contention is not sound. The card was in no sense contractual, nor did it contain any statement or admission which, under the circumstances, the defendant was es

Plaintiff's counsel also vigorously insist that the defendant has failed to comply with some of the material terms of the warranty. They contend that the defendant under the warranty only had the right to try out the harvester for five days, and that after a trial of five days he was required to immediately notify the plaintiff in writing at the home office at Salt Lake City, and also in the same manner notify the branch office at Garland, stating the particulars in which the harvester failed to fulfill the warranty, all of which he failed to do. Counsel therefore contend that defendant must fail in his defense for the same reason that the defendant in the Barben Case failed. As before stated, we cannot yield assent to counsel's contention. If it were true that the defendant here had failed the same as the defendant in the Barben Case failed, counsel's contention should prevail. Counsel, however, construe and apply the terms of the warranty in question too literally. The terms of any contract, whether it be a warranty or something else, must receive a fair and reasonable construction and must be applied in the light of the circumstances and conditions under which the parties acted at the time it was entered into. This case, in its controlling features, is wholly unlike the Barben Case. Here the harvester was not even delivered to the defendant in the ordinary condition, but it was delivered as unassembled machinery. The plaintiff took it upon itself not only to assemble the parts and to "set up" the harvester, as Mr. Pearson says, but it, through its special expert, undertook to start the operation of the harvester itself. This it had a perfect right to do, and in view that this was the first harvester of the kind which plaintiff had sold it was both prudent and proper that it should have assembled it and supervised the operation. A mere cursory reading of the warranty will disclose that it is based upon the theory that the purchaser of the machine himself starts to operate it, and if, in doing so, it for any reason