1 The statute (section 3283, C. L. 1907) provides that "the verdict of the jury; the final decision in an action or proceeding; an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte applications; and an order or decision made in the absence of a party—are deemed to have been excepted to." This statute is identical with section 647 of the California Code of Civil Procedure. Under that statute the Supreme Court of California held that it is thoroughly settled in that state that a motion for nonsuit will not be reviewed, where no exception was taken or reserved to the ruling. (Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Craig v. Hesperia Land & Water Co., 107 Cal. 675, 40 Pac. 1057; Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830.) We do not see why a different rule should be adopted with respect to a motion to direct a verdict. While the granting of the one is a bar to another action, and the granting of another is not, still the effect of both, when granted, is to take the case from the jury, and to end the trial and terminate the action. The ruling not being reviewable, because no exception was taken thereto, and no other question being presented, it follows that the judgment of the court below must be, and it accordingly is, affirmed, with costs. FRICK, C. J., and MCCARTY, J., concur. BOWE v. STILWELL et al. No. 2161. Decided September 7, 1911 (117 Pac. 876). 1. TROVER AND CONVERSION-ACTIONS-INSTRUCTIONS. In an action against a real estate agent for the conversion of plaintiff's household goods, which were placed in a building by the authority of the agent, the case was not tried on the theory that a receipt given by the agent to the plaintiff for payment of rent operated as a lease, but the evidence tended to show that defendant entered with the agent's permission. Held, that the refusal of the court to instruct that the receipt did not constitute a lease was not error. (Page 379.) 2. APPEAL AND ERROR-ERROR WAIVED IN APPELLATE COURT. Appellant's exception to the refusal of a requested instruction will be deemed waived in the appellate court, where his brief does not mention that assignment of error. (Page 381.) STRAUP, J., DISSENTING. APPEAL from District Court, Second District; Hon. John F. Chidester, Judge Action by Annie E. Bowe against O. J. Stilwell, impleaded with another. Judgment for plaintiff. Defendant appeals. AFFIRMED. J. N. Kimball for appellant. J. E. Bagley and George J. Marsh for respondent. FRICK, C. J. This is the second appeal of this case. The former appeal was from a judgment of nonsuit, which was reversed. (Rowe v. Palmer, 36 Utah, 214, 102 Pac. 1007, 24 L. R. A. [N. S.], 226.) The evidence adduced on behalf of the plaintiff in this action, the respondent here, with the exception of making clear some of the matters referred to in our former opinion, is substantially the same as it was on the former hearing. In view of this, we refer the reader to our former opinion for a statement of the facts, where they are stated in detail. The evidence adduced on behalf of appellant in its effect was limited to disputing or denying the statements made by respondent and her witnesses. In view of this a con flict arose, which, in view of what was said in our former opinion, was proper to submit to a jury. The court, in submitting the case to the jury, followed the law as laid down by us in the former opinion. The trial resulted in a verdiet and judgment in favor of respondent, and the appellant prosecutes this appeal. It is contended that the court erred in refusing appellant's request, in which the jury were directed to return a verdict in his favor. If our conclusions on the former appeal are sound, and we think they are, then the court committed no error in submitting the case to the jury upon the whole evidence. If there is any difference in the evidence adduced on behalf of respondent, it was stronger in its details on the last than it was on the former trial, and the mere fact that appellant denied or disputed a large portion or nearly all of respondent's evidence would not authorize the court to take the case from the jury. Another assignment relates to the giving of and refusing to give certain instructions to the jury. The first exception relates to the giving of two instructions, in which the court instructed the jury that in determining appellant's liability they should consider all the facts and circumstances as they were made to appear from the evidence. In connection with this statement, the court told the jury just what would constitute a conversion of personal property, and under what circumstances they might find a person guilty of conversion, in accordance with the law laid down in the former opinion. Counsel for appellant in effect concedes that, if there was no error in submitting the case to the jury, then no serious error was committed in giving the two instructions just referred to, since all the argument that he offers upon the latter point is that what he had said in his brief upon the alleged error in submitting the case to the jury should be considered upon the latter point. In this connection counsel says: "It (the court) had no right to submit the appellant's acts with reference to the leasing of the building as in any way tending to show an aiding, by him, of Mrs. Palmer, in detaining the goods, or as tending to show any connivance by him with her." In other words, it is, in effect, contended that the jury should not be permitted to consider all the facts and circumstances, including all that was said and done by appellant, in determining his liability. If the court had told the jury what, if any, effect any particular act, conduct, or statement of appellant, or of any of the witnesses should receive at the hands of the jury in determining the appellant's liability, it no doubt would have been error. So would it have been error, under the circumstances, to withdraw from the jury any fact or circumstance in evidence which in any way tended to implicate or excuse appellant with respect to the acts which respondent contended amounted to a conversion of her property. We are unable to perceive how it was error to submit all the facts and circumstances to the jury, as was done, including those connected with the leasing of the premises in which respondent's property was when the alleged conversion took place. The next assignment relates to the refusal of the court to give an entire request of appellant's just as it was offered. All that is said by counsel in his brief relative to this assignment is as follows: "The court, having refused the second instruction asked for by the appellant, should certainly have given the latter part of the fourth instruction asked by him. That instruction simply asked the court to construe the receipt given for the one month's rent. It is too plain for argument that it is always the duty of courts to construe written contracts." The "second instruction" referred to is the request to direct a verdict for appellant. The court gave a large portion of the instruction requested, but refused to give it as a whole. That part of the instruction which was refused related merely to the legal effect that should be given to the receipt given to respondent for the first month's rent, which appellant had received from her under the conditions stated in our former opinion. The 1 portion refused, after setting forth the receipt in full, proceeds as follows: "That this receipt did not authorize the plaintiff to enter into the occupancy of the second floor of the Tanner Block, in the city, or to retain possession thereof, and if you find that she (respondent) did enter into the occupancy of said building and moved into the same (the property described in the complaint), or any of it, such placing of the property in the building would not render the defendant O. J. Stilwell liable to her for the same in any manner whatsoever. Even if you should find from the evidence that the owner of the building subsequently rented or leased the same to the defendant Annie Palmer, and that said Annie Palmer thereafter wrongfully detained said property, or some of it, from the custody of the plaintiff." It is sufficient to say in this connection that the case was neither tried nor submitted to the jury upon the theory that the receipt in question gave respondent any special rights. Neither did respondent take possession of the building by virtue of the receipt. According to her testimony, which the jury had a right to believe, she obtained the keys to the building from appellant and went into possession of it before the receipt was given. The receipt, therefore, was evidence merely of the payment of the first month's rent for the building. Appellant admits the payment of the money; admits that he received and got it and remitted the same to the owner of the building as rent. Moreover, there was evidence to the effect that a lease had been received by appellant, in which the building was leased to respondent; that appellant, without her permission, erased her name from the lease and substituted Mrs. Palmer's name in the place of respondent's therein, and then delivered the lease to Mrs. Palmer. Respondent testified to having seen the original lease in which the change was made, and she also testified that appellant admitted to her that he had made the change of names. True, appellant denied this; but whether he or respondent told the truth in this regard was for the jury to say. In addition to all this counsel for appellant offered a request, which the court gave just as requested, in which the jury were told in plain terms just what facts they |