The plaintiff brought this action against the defendant to recover $6,370.97, alleging "that at Ogden, Utah, on January 8, 1920, the defendant received the sum of $5,000.00 from the plaintiff to and for the use of the defendant and which sum the defendant then and there agreed to pay to the plaintiff at Ogden, Utah, in ninety days thereafter with interest thereon at the rate of eight per cent per annum from January 8, 1920." It was further alleged that the defendant had made certain specified partial payments of interest and principal amounting to $1,669 reducing the amount of the indebtedness to that sued for.
The defendant by his answer denied the receipt of any sum of money from the plaintiff and any agreement to pay any sum to plaintiff for money received from him. The defendant denied that he had made any payments on any indebtedness to the plaintiff, but alleged that the amounts claimed by the plaintiff as payments were sums advanced by the defendant to the plaintiff to relieve his financial distress to become gifts when like amounts were advanced to plaintiff by other members of the plaintiff's family. By counterclaim it was alleged that equal amounts were not advanced by other members of the plaintiff's family by reason of which the advancements by defendant failed to become gifts, and the amounts so advanced by defendant, amounting to $1,644, were held by the plaintiff for the use and benefit of the defendant, for which the defendant prayed judgment against the plaintiff.
A trial by jury resulted in a verdict and judgment for the plaintiff for the sum of $6,203.58, from which the defendant has appealed.
The errors assigned by the appellant are that the trial court erroneously refused to give certain requested instructions to the jury and erroneously gave others, that the evidence *Page 36 is insufficient to justify the verdict and judgment, and that the court erred in denying the defendant's motion for a new trial.
A brief statement of the facts as claimed by the opposing parties is necessary to illustrate the questions to be decided.
Plaintiff and defendant are father and son. The plaintiff is a farmer, now about seventy-seven years of age. He has resided for many years on a farm at Plain City in Weber county. The defendant is an attorney at law of more than thirty years' practice in the courts of this state, and for many years has resided in Salt Lake City. In the year 1919 the defendant was interested with certain associates in promoting a scheme for the reclamation and sale of certain lands in Cache county. The scheme involved the acquisition of a considerable area of land upon which water to be obtained from Bear river by means of a pumping plant was to be applied for irrigation and the land with water rights disposed of. A corporation called the Petersboro Land Company was organized for the purpose on December 31, 1919. Later the name of the corporation was changed to Intermountain Sugar Company. Most of the capital stock was issued to the defendant and his associates in exchange for land and water rights transferred by them to the corporation. The defendant was one of the promotors of the scheme, and was heavily interested in it. He prepared the articles of incorporation, and was present when they were executed.
The plaintiff contends that the defendant invited him to to subscribe for stock in the corporation, but that he declined because he had no money to invest and would not borrow for that purpose. The defendant, knowing that the plaintiff was able to borrow money, and desiring the influence and prestige of the plaintiff in the organization, proposed that the plaintiff borrow $5000, and put it in stock in the corporation, and that he (the defendant) would pay the money back to the plaintiff in ninety days; that with such understanding the plaintiff did borrow $5,000 *Page 37 at a bank in Ogden, and, at the direction of the defendant, signed the articles of incorporation of the corporation, and formally subscribed and paid $5,000 for fifty shares of its capital stock. The articles of incorporation showed a subscription for 160 shares of stock of the par value of $16,000 by the plaintiff. It was explained by the defendant himself that 100 shares of this subscription was for A.S. Heggie and 10 shares for W.W. Beck, neither of whom were present at the time. A certificate for 50 shares of stock was issued to the plaintiff. Thereafter, and upon the request of the defendant, he acted as a director of the corporation, and attended and participated in numerous meeting of the directors. He was also employed for a few months as foreman of a group of workmen employed by the company, for which he was paid $200 per month. Later the corporation failed. At various times the defendant made partial payments to the plaintiff upon the amount due him, the aggregate of which was $1,669. The defendant repeatedly promised to pay the remainder due, but did not do so.
The defendant denied that the plaintiff furnished any sum whatever for defendant's use or benefit, but claimed that plaintiff invested the sum in question on his own account in the stock of the corporation. He admitted making the payments as claimed by the plaintiff and certain 1, 2 promises to make future payments, but contended that they were all in the nature of gifts made voluntarily to relieve the financial distress of the plaintiff. The argument of the appellant respecting the supposed errors in the charge to the jury, in the main, goes to the sufficiency of the evidence to establish a cause of action in favor of the plaintiff. Exceptions were taken to the refusal of the trial court to direct a verdict against the plaintiff of no cause of action and to direct a verdict for the defendant on his counterclaim. The argument, as we understand it, is that, in view of the admitted fact that the plaintiff subscribed and paid for the capital stock and accepted a certificate *Page 38 therefor in his own name, and acted as a director of the corporation, he is thereby precluded by law from claiming that the money was paid out for the use and benefit of the defendant. With this we do not agree. No authority of law supporting the proposition is called to our attention, nor has any sufficient legal reason been pointed out why the parties could not enter into such an agreement as the plaintiff alleged and proved. That the plaintiff accepted and retained a certificate of stock in his own name, and accepted and exercised the office of director in the corporation, are important facts to be considered in determining what the actual transaction was, but the existence of such facts are not in law inconsistent with an agreement on the part of the defendant to repay the plaintiff the amount paid for the stock.
That the defendant induced the plaintiff to subscribe for the stock by promising to repay the amount to the plaintiff in ninety days, and that the stock was issued to the plaintiff for the purpose of qualifying him as a director at the request of and for the benefit of the defendant, was well proved, and the jury was justified in finding to that effect. And such a finding is sufficient in law and in fact to entitle the plaintiff to recover the sum claimed as money paid. 41 C.J. 12.
The only error assigned concerning the defendant's counterclaim is the refusal of the court to direct a verdict for the defendant for the sum of $1,270 on account of it. It is plain that this request was properly refused. There was no request by the defendant to submit the counterclaim to 3 the jury and no exception taken or error assigned because it was not submitted. As all payments claimed to have been made by the defendant were expressly admitted by the plaintiff, there was no question on that score. It is apparent that at the trial the matter of the defendant's counterclaim was ignored and abandoned.
Complaint is made that the court erred in giving an instruction to the jury, No. 15, as follows: 4 *Page 39
"You are instructed that the only issues in this case are between plaintiff and defendant. Evidence on collateral or outside issues not connected with the issues in this case is inadmissible, except as embodied in conversations in which statements made by one or more persons on such subjects formed or are claimed to have formed a part of such conversations."
There is obviously some error in the record of this instruction, for the latter portion of it is unintelligible and meaningless. The first part of the instruction was evidently designed to exclude from consideration much extraneous matter brought into the case by the defendant, concerning family differences and disputes with third persons. We do not think it left the jury to judge of the competency of the evidence, as contended by appellant. We do not approve the instruction, but, in view of the issues and evidence, are unable to see how it could result in prejudice or harm to either party.
Other exceptions to parts of instructions are briefly alluded to by the appellant, but we find them without merit.
The appellant suggests in his brief that there is a variance between the allegation and proof of plaintiff's case. He says "the complaint alleges a case of money had and received or a loan," and that the evidence shows neither. There are several reasons why the judgment cannot now be impeached upon that ground. The allegation of the complaint is that 5-8 "the defendant received the sum of $5,000.00 from the plaintiff to and for the use of the defendant, and which sum the defendant then and there agreed to pay to the plaintiff." This is not a count for for money had and received. The essential characteristic of that count is the receipt of money by the defendant for the use and benefit of the plaintiff. Where the money is paid for the use of the defendant, the proper count is for money paid, 41 C.J. 49, the traditional form of which is "that defendant is indebted to the plaintiff for money paid to defendant's use and benefit at his special instance and request, and that defendant promised and agreed to repay *Page 40 the same," 41 C.J. 22. As before seen, the plaintiff's proof established a cause of action as for money paid by the plaintiff to a third person at the request of the defendant and for his use and benefit, and which the defendant promised and agreed to repay to the plaintiff. It was no material variance to prove payment to a third person instead of to the defendant as alleged. Fenlason v. Pac. Fruit Package Co., 112 Or. 633, 230 P. 547. The allegation of the complaint varies from the classical form by averring "that the defendant received the sum of $5,000.00 from the plaintiff," instead of "that the plaintiff paid the sum of $5000.00 to the defendant." The variation is not material. The same substantial fact is expressed by both statements. The other element of a count for money paid is included in the complaint. We therefore think the pleading states a count for money paid and not for money had and received. But, if there is an ambiguity in this respect, it must be resolved in favor of the theory adopted at the trial by the parties and the court. Horka v.Wieczorek, 64 Ind. App. 387, 115 N.E. 949. And it was upon the theory of a count for money paid that the case was tried and decided below. No objection whatever was made there that the proof did not conform to the plaintiff's complaint. Neither is there an assignment of error in this court relating to the subject. Another reason why the claim of variance must be dismissed is Comp. Laws Utah 1917, § 6615, which provides that no variance between pleadings and proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Here it is not even claimed that the defendant was misled. That he was not is affirmed by the record that plaintiff's counsel made his opening statement in which he fully outlined the facts intended to be proved, that the plaintiff's evidence was offered and admitted without any objection whatever that it did not conform to the pleadings, and that the defendant promptly followed with his evidence in support of his defense upon the merits, and the case went *Page 41 to the jury, with no objection whatever by the defendant that there was a variance between the plaintiff's pleadings and his proof.
The principal argument of appellant is devoted to the assigned error of the trial court in denying his 9-11 motion for a new trial for misconduct of the jury.
Defendant attempted to show by affidavits that one A.J. Nielson had improperly influenced the jurors by mingling with them during the trial and making derogatory remarks concerning the character of the defendant. Nielson was not connected with the case, but attended the trial a portion of the time as a spectator. He was seen around the courtroom, and at times during recesses of the court was observed in conversation with jurors. On one occasion during a recess of the court he remarked concerning the defendant, "There is a dirty crook." One of the jurors overheard the remark; the juror's affidavit being that he overheard Nielson say to some stranger with whom he (Nielson) was talking that "Skeen (without designating which Skeen) was crooked"; that he (the juror) paid no attention to the remark whatever, and was not influenced by it, and never thought of it or mentioned it thereafter to any person or juror. There were other affidavits showing that Nielson had a personal animosity and was hostile and unfriendly towards defendant, and that he had, during the trial, made a statement reflecting upon defendant's integrity to one other spectator not connected with the case. An affidavit that the juror had after the trial made statements to the effect that he had been told by Nielson during the trial that defendant was a crook and had robbed his own father, etc., and that Nielson was a reliable fellow, was denied by the affidavit of the juror.
The substance of the showing was that Nielson, a person not connected with the case, in the hall of the courthouse, and during a recess of the court, made the derogatory remark; that one juror overheard it, but paid no attention to it, and was not influenced by it. There was no showing *Page 42 that the plaintiff or any one for him participated in or was connected with the occurrence. Neither was it made to appear that Nielson made the remark with any knowledge or intent that it should be heard by the juror.
We do not think, upon this showing, the trial court was bound to find misconduct on the part of the juror and to grant a new trial on account of it. The granting of a new trial upon this ground is within the sound discretion of the trial court, and it is generally held that a new trial will not be granted because of remarks about the case in the hearing of jurors by strangers to the litigation where neither the successful party nor the jurors were at fault, unless such remarks probably influenced the verdict. 46 C.J. 138; Cowles v. Merchants, 140 Mass. 377,5 N.E. 288; Caswell v. Pitcher (Me.) 10 A. 453; Ridenour v.City of Clarinda, 65 Iowa 465, 21 N.W. 779; Van Loon v. St.J. Ry. L., H. P. Co., 271 Mo. 209, 195 S.W. 737; Stevens v.Depue, 151 Wash. 641, 276 P. 882.
JUDGMENT AFFIRMED.
ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.