the two plumbers practically agree in their statements, so that it is not necessary to repeat them.

1

In view of the foregoing facts, is counsel's contention tenable that in view of the evidence, respondent is guilty of negligence as a matter of law, and that appellant, as a matter of law, is not guilty of contributory negligence? We think not. It seems to us that the facts are not of that character upon which all reasonable men would agree either that respondent's employees were necessarily guilty of negligence in leaving the wrench on top of this stepladder under the circumstances, or that appellant was entirely free from all negligence in doing what he did. The question, therefore, was one of fact for the jury, and we are of the opinion that the verdict of the jury finds support in the evidence.

Counsel also urge that the court erred in submitting the question of contributory negligence to the jury, and they excepted to the instruction given by the court on that question. Counsel do not contend that the instruction given by the court on its own motion upon the subject of contributory negligence did not correctly state the law; but they insist that it was error to give the instruction for the reason that the question of contributory negligence, in view of the evidence, was not in the case. From what we have said in passing on the evidence, it necessarily follows that the mere fact of submitting the question of contributory negligence to the jury did not constitute error. Counsel, however, contend that the court erred in modifying a certain request which they asked upon the subject of contributory negligence. We cannot assent to this contention for the reason that the court simply modified counsel's request by eliminating therefrom matters which in their nature were merely argumentative. In so far as the request stated a legal principle, the court gave the charge as requested. After counsel had, however, stated the proposition of law, they followed it by stating the reasons on which the proposition of law rested, and, as this was merely

2

an argument, the court, in our opinion, did not err in modifying the request in the manner disclosed by the record.

3

Another assignment relates to the giving of a certain charge in which the court submitted to the jury the question of whether the respondent, as the ultimate employer, was liable for the alleged negligent acts of the two plumbers. There was considerable controversy as to whether the plumbers, in doing the work in question, were or were not under the direct supervision and control of Zion's Cooperative Mercantile Institution. The court, however, submitted that question to the jury in the instruction of which counsel complain. In view of the fact that the record discloses that counsel for appellant themselves requested the court to submit the foregoing question to the jury by requiring them to specially find whether the two plumbers in doing the work referred to, were subject only to the control and direction of respondent, and for the further reason that, as we construe the special finding (and appellant's counsel seem to agree with us in this construction since they do not complain of the finding), the jury found against respondent on that question, the appellant has no cause for complaint.

4

If we are right in the foregoing conclusions, then counsel's contention that the court erred in giving paragraph 14 of the instructions also fails. The only objection to this instruction is that the court in effect passed on the weight of the evidence offered upon the question which we have just discussed. In view that the jury found in favor of appellant's contention, namely, that the two plumbers were under the direct control and direction of respondent in doing the work before referred to, the giving of the instruction did not constitute prejudicial error, even if it were conceded that the court passed on the weight of the evidence by what was said in the instruction.

In the light of the whole evidence and the instructions given to the jury, we are of the opinion that appellant at

least has suffered no prejudice, nor has he made any such error appear from the record.

The judgment is therefore affirmed, with costs to respondent.

STRAUP, C. J., and MCCARTY, J., concur.

FEE v. NATIONAL BANK OF THE REPUBLIC.

No. 2049. Decided January 4, 1910 (106 Pac. 517).

1. BANKS AND BANKING-ACTIONS FOR DEPOSITS-PLEADING ISSUES. Where the complaint alleged that defendant bank received on deposit, on April 16, 1908, the sum of $1077.62, which it agreed to repay on demand, but refused to do so, and the answer alleged that defendant received on the date alleged in the complaint the sum of $2227.62, and paid to plaintiff on his check on a date thereafter the sum of $1150, and on a subsequent date paid to him on his check the sum of $1075, leaving a balance of $2.62, the only issue was whether defendant had paid to plaintiff or his order the sum of $1075. (Page 31.)

2. JUDGMENT-CONFORMITY TO ISSUES WITHDRAWAL OF ISSUES. In an action against a bank for a deposit, defendant's counsel, by stating that, if the court found that plaintiff's signature to the canceled check for the amount claimed by plaintiff was genuine, judgment should be entered for plaintiff only in the sum defendant claimed was due, agreed to the elimination of all issues other than the genuineness of the check, and hence judgment was properly given plaintiff for the amount claimed upon finding against the genuineness of the signature. (Page 31.)

8. APPEAL AND ERROR-PRESENTATION BELOW ISSUES NOT PRESENTED. Where the trial court, at appellant's request, passed upon but one issue in rendering judgment, the Supreme Court cannot pass upon other issues not considered, or requested to be considered, below. (Page 32.)

4. APPEAL AND ERROR-DISCRETION OF TRIAL COURT-EXAMINATION OF WITNESSES-INSPECTION OF DOCUMENTS. It was within the trial court's discretion to permit a witness to examine an instrument to which his alleged signature was attached before stating whether his signature was genuine; and its ruling will not be disturbed on appeal, in absence of a prejudicial abuse of discretion. (Page 33.)

5. APPEAL AND ERROR-FINDINGS-CONCLUSIVENESS. Where the judgment is based upon findings supported by sufficient evidence, the Supreme Court cannot reverse, though it might make different findings from the evidence contained in the record. (Page 34.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Dennis Fee against the National Bank of the Republic.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Soren X. Christensen and Howat & Macmillan for appellant.

Thompson & Gibson for respondent.

FRICK, J.

On May 21, 1908, respondent herein filed his complaint in the district court of Salt Lake County, in which he in effect alleged that on the 16th day of April, 1908, the appellant herein had received from respondent the sum of $1077.62 for his use, and that said appellant had agreed to pay the same to respondent upon demand, that before the bringing of this action respondent demanded from appellant said sum of money, and that said appellant refused to pay the same to respondent. Appellant answered the complaint, and, after denying respondent's version of the transaction, stated the facts to be substantially as follows: That on the 16th day of April, 1908, appellant received from respondent the sum of $2227.62, which appellant agreed to pay respondent on demand; "that on the 20th day of April, 1908, the defendant paid to the plaintiff on his check the sum of $1150; that on the 24th day of April, 1908, the defendant paid to the plaintiff on his check the sum of $1075; that there is still due to the plaintiff the sum of $2.62, which the defendant is now, and at all times herein

mentioned has been, ready and willing to pay to the plaintiff on his demand." Upon these pleadings the case was tried to the court without a jury. At the trial the facts adduced on the part of respondent were, in substance, as follows: Respondent produced a deposit slip issued by appellant, from which it appears that respondent, on April 16, 1908, deposited with appellant the sum of $2230.87; that on April 20, 1908, respondent's check, drawn against said account for $1150, was presented and duly paid by appellant; that on May 4, 1908, respondent drew another check against said account for the sum of $1077.62, and presented the same to appellant for payment, and that payment thereof was refused upon the ground that respondent had no money in the bank except the sum of about $2.60; that at the time respondent presented the second check for payment appellant gave him a statement from which it appeared that respondent had actually deposited with ap pellant the sum of $2230.87; that appellant had paid out on checks drawn against said account the sum of $2228.25, leaving a balance of $2.62 due respondent. The respondent denied that he drew, or presented, or authorized any one to draw or present for payment, any check or checks drawn against said account, except the check for the sum of $1150. On cross-examination respondent was shown a certain check to which his name was signed, dated April 23, 1908, for the sum of $1075, payable to the order of P. H. O'Neill, and which was paid by appellant April 24, 1908. Respondent denied that the signature to the check aforesaid was his signature, and stated, in substance, that the appellant had paid the same without authority. All the checks which appellant claimed were drawn on respondent's account, and which it had paid, and the signature of respondent which he had left with the appellant, as well as other genuine sig natures, were admitted in evidence, and all were before the court for comparison. For reasons hereinafter stated we shall not refer to the other evidence, of which there is considerable in the record. Upon substantially the foregoing evidence the court in substance found that the appellant