Young v. Godbe

IN error to the Supreme Court of the Territory of Utah.

Godbe filed a complaint in the court below against Brigham Young, 'as trustee in trust of the Church of Jesus Christ, a religious association in the Territory of Utah,' alleging an account stated by 'said defendant' prior to February 12th, 1866, and upon such statement a balance of $10,020 'due from said defendant;' a payment of $5000, May 30th, 1868, and praying judgment with interest at 10 per cent. 'by way of damages.'

The defendant demurred, assigning for cause that it did not sufficiently appear from the complaint whether the suit was against the defendant 'in his individual capacity or in his capacity as trustee in trust for the Church of Jesus Christ of Latter-Day Saints.' The demurrer was overruled. The defendant then pleaded that no account had ever been settled by him as trustee in trust,' as alleged in the complaint, and that neither the sum stated in the complaint nor any other sum had been found due to the plaintiff from said defendant as said trustee.'

On the trial evidence was given tending to show that the money alleged to have been advanced by the plaintiff had been advanced to Young in some capacity, and an account stated and credit given as alleged. In what capacity was the question on which the controversy turned; whether, as alleged in the complaint, to him 'as trustee in trust of the church,' &c., or whether as agent of a company known as the 'Deseret Irrigation and Canal Company;' a company which one of the witnesses swore was 'so mixed up with the church that he did not know the difference between them.' The plaintiff sought to prove that it had been advanced to Young as 'trustee in trust of the church,' &c. Letters from Young sought to cast the debt on the Irrigation and Canal Company.

The defendant having given evidence tending to show that the Irrigation and Canal Company had an office in what was known as the Council House, and that the 'trustee in trust,' &c., had his at what was known as the President's Office, and that these departments were separate and distinct from each other, and had a separate set of clerks,-the plaintiff brought one Armstrong, who testified that he was in 1857, and had been ever since, the bookkeeper of a firm known as Kimball & Lawrence, merchants in Salt Lake City; that they had an account of some $10,000 against the Deseret Irrigation and Canal Company; that Mr. Lawrence, one of the firm, took the account and went away with it, and in a short time returned 'stating to this witness that it had been settled by the 'trustee in trust,' by giving credit to a certain person on tithing, and that the transaction so appeared on the books of Kimball & Lawrence.' The defendant objected to all this evidence, for the reason 'that it was not in rebuttal and therefore illegal.' The court overruled the objection (the defendant excepting) 'and the testimony was permitted to go to the jury for what it was worth.'

In charging, the court charged that if the jury should find for the plaintiff, they would find $5020, with interest on $10,020 from the day the account was rendered until the day of the payment of $5000, and from that date to the day of trial on the amount remaining due.

Verdict and judgment having gone for the plaintiff, the admission of the evidence above mentioned and the instruction to the jury were, among other matters, assigned for error.

Messrs. C. J. Hillier and Thomas Fitch, for the plaintiff in error; no opposing counsel.

Mr. Justice DAVIS delivered the opinion of the court.