Volume 1 — Colorado Court of Appeals Reports

<p>1. Assignment of a Specipic Fund to Preferred Cbeditobs.—The assignment of a fund by an insolvent debtor'to one of his creditors, made for the benefit of the assignee and a certain other creditor, is not invalidated by the subsequent act of the latter creditor in transferring his- claim for collection and without consideration to the assignee, or by the acts of the two favored creditors in agreeing upon a ratable distribution of the-fund between them, it not being sufficient to pay their claims in full.</p> <p>2. Attempt to Reach Assigned Fund in Hands op Holder. — In proceedings brought by a non-preferred creditor of an insolvent debtor to reach a fund due the debtor in the hands of the holder thereof, but which had been assigned by the debtor to certain preferred creditors, the issues raised upon the intervention of the assignee being the validity of the assignment, and whether a surplus existed after satisfaction of the preferred claims, in the absence of evidence to establish affirmatively either issue, the court was justified in ordering the delivery of the fund to the assignee.</p> <p>3. Liability of Gaunishee.—Generally a garnishee is not chargeable, unless the defendant could recover of him, by an action instituted for that purpose, what the plaintiff seeks to secure by garnishment proceedings.</p>

It is alleged that on the 21st day of April, 1886, the appellant issued and delivered to Eugene H. Teats an accident insurance policy, to be effective for twelve months from its date, whereby Teats was to receive from the Insurance Company $25 a week for loss of time -in consequence of any bodily injury sustained by him during .the existence of such policy, through external, violent and accidental means, which should wholly disable him from transacting his. business as a…

<p>1. Sale of Land without Covenants as to Water-bight.—The owner of a tract of land gave to the agent of the party who subsequently purchased it a written option to purchase in the name of the agent, at a certain price. The owner had contracted with a water company to supply the land with water for irrigation on instalments, part of which had been paid, but no mention of the water-right was made in the option to purchase. The sale was made, and the land conveyed direct to the purchaser without an assignment of the water-right, or any contract in regard to it. Under ' such circumstances the presumption is that the future payments on the water-right were to be made by the purchaser.</p> <p>2. Unpaid .Instalments not Recoverable by Agent.—In no event could the agent maintain an action against the grantor for recovery of the unpaid instalments. Having obtained merely an option to purchase he acquired thereby no right individually to the water, ■ separated from the land, and even if there had been a covenant for and conveyance of the water-right, the agent could not recover the amount of the unpaid instalments as neither land nor water was conveyed to him.</p>

<p>1. Appeal-Bond Signed by Subety on Condition.—Though a surety-signs an appeal-bond on condition that it shall not be delivered until signed 'by another surety, where he delivers it to the princi- ' pal, who files it in disregard of the condition, the instrument being ; regular on' its face and there being nothing to put either clerk or obligee on inquiry regarding it, such surety is estopped to say that the bond is not binding on him.</p> <p>2. Judgment on Appeal-Bond against Administbatob.—In an action against an administrator upon an appeal-bond executed by the intestate, in his lifetime, it is error to render judgment for the full penalty of the bond, the damages proven being a smaller sum, with an order that execution issue tlierefoi’. The judgment should px-ovide for its discharge on payment of the damages, the latter to be paid in due course of administration.</p>

<p> Frror to County Court of Parh County. </p>

<p> Appeal from District Court of Arapahoe County. </p>

<p>I. Restbaint of Mabbiage—What Does not Constitute such ConTbact.—-A contract whereby a man agrees to pay Ms divorced wife $45 per month so long as she remains unmarried, no obligation being imposed on her not to marry, is not a contract in restraint of marriage; and not involving questions of morals or public policy it cannot be avoided on any of these grounds.</p> <p>2. Contbact with Divobced Wife Made afteb Decbee OF Dlvobce.—A decree of divorce obtained by a husband against Ms wife does not, of its own force, release Mm from his obligation to pay the wife a sum of money monthly for her support during their separation, as stipulated in articles of separation previously entered into between them, at least when no provision for alimony is made in the decree. A new agreement made after the divorce, whereby ' the husband is released from the former by obligating himself to ■ • pay the Wife a certain sum monthly as long as she remains unmarried, imports a valuable consideration, wbicb is sufficient to sustain it.</p>

<p>Practice on Appear.—An appeal from a judgment for services rendered cannot be sustained on the ground of injustice in the verdict, and want of evidence to support it, where it is shown by the record that the cause was submitted to the jury under instructions which clearly expressed the law governing the controversy, and the evidence was sufficient to establish the employment of the plaintiff, and the performance of the services sued for.</p>

In 1889 Henry N. Coffey brought this suit against Anthony Arnett and Mary G., his wife, to cancel sundry conveyances which apparently vested the title to the described property in the wife.

<p> Error to District Gourt of Huerfano Gounty. </p>

<p> Appeal from County Court of Arapahoe County. </p>

JError to District Court of Larimer County. Defendant in error is a corporation operating under the general incorporation law of the state for constructing, operating, and maintaining a ditch for irrigating, agricultural, domestic, and manufacturing purposes. In April, 1881, it commenced the construction of its ditch from the Cache la Poudre river, at a point near the foot of the mountains, to run in an easterly and southeasterly direction.

In 1889, Taggart brought suit against the coal company to recover certain moneys which he claimed to have loaned the concern, and which were due at the time of the bringing of the suit. It was substantially agreed that the amount of his claim (if he was entitled to recover at all) was $272.80, The defense made by the company consisted of denials and a counter-claim.

<p>1. Town-sit® Patent Issued in Name oe County Judge.—Where public land of the United States is occupied as a town-site, but the town is not incorporated, and the county judge of the county wherein the land is situate enters it in his own name under sec. 2387, Rev. St. U. S., “ in trust for the several use and benefit of the occu- , pants thereof,” making payment of the government price therefor, he becomes invested with the legal title on receipt of the patent, and a deed from his successor in office will give a valid title as against one claiming through the authorities of the town, which became incorporated prior to the issuing of the patent.</p>

Mrror to Superior Court of Denver. In 1888 Mrs. Pleyte filed a bill against the defendant in error to obtain alimony by way of separate maintenance. The husband answered, denied the various allegations of the complaint, set up sundry affirmative matters of a defensive character, and filed a cross-complaint. In the cross-complaint he prayed for a divorce a vinculo. On the 10th day of December following the cause was set for trial on the 7th day of January, 1889.

<p>Real-estate Agents—Commissions.—A real-estate agent who is authorized to sell a piece of property for $7,500, or for $7,000 net, clear of all commissions, cannot- recover commissions from the owner, who herself sells the property for $7,000 to a purchaser who was introduced to her by the agent, but to whom the agent was unable to mate a sale, and who made the agent no offer whatever.</p>

<p> Appeal from District Court of Chaffee County. </p>

<p>1. Dismissal of Appeal for Eailure to Serve Notice.—The requirement of the act of 1885,. that in an appeal from a county court to a district court, if the appeal he not taken on the day the judgment is rendered the appellant shall serve notice of the appeal upon the appellee, or his attorney, within five days after it is taken, or the appellee may have the judgment affirmed or the appeal dismissed, is mandatory, and vests the district court with no discretion as to its enforcement.</p> <p>2. Appeal hot Perfected until Appeal Bond Piled.—Praying an appeal to the district court on the day judgment is rendered, and its allowance upon filing the required bond within ten days afterward, does not excuse or satisfy the requirement as to serving notice of the appeal, since the appeal is not taken, or perfected, until the bond is filed.</p>

This suit originated in transactions between the parties concerning a certain tract of land, appellant being the owner of the farm. Scott, MeCourt and Wiswall, (appellees,) considering it desirable for subdivision as suburban property for residences, purchased it for that purpose, paying, no money. The property was conveyed by appellant by warranty deed, a note made for the entire purchase, $16,000, and a trust deed given upon the property to secure the payment.

<p> Error to County Court of Lake County. </p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts sufficiently appear in the opinion.</p>

<p> Appeal from District Court of Arapahoe County. </p>

<p>1. A Purchaser’s Promise to Pay Encumbrance not Collateral. —A promise made by the purchaser of a crop of oats, on which there was a chattel mortgage, to pay the mortgage debt as a part of the price of the crop, is not a collateral promise within the statute of frauds.</p> <p>2. Evidence to Sustain Bill of Sale.—The note and chattel mortgage were admissible in evidence in a suit by the mortgagee against the purchaser of the crops for the purpose of showing that they • evidenced the debt mentioned in the bill of sale given by the mortgagor to the purchaser, notwithstanding a misdescription of the note in the bill of sale.</p>

<p>1. Poem of Appeal Bond.—It is not essential, in order to bind tbe obligors in an appeal bond, that it should be drawn in the specific form expressed in the statute; it is enough if the instrument substantially conforms to the statutory provisions.</p> <p>2. Liability op Surety in Appeal Bond.—The omission of the name of the surety from the face of an appeal bond and from its recitals does not release him from liability, where he signed the bond and justified as surety.</p>

<p> Error to County Court of Otero County. </p>

Prior to the year 1888, and up to September 1st of that year, the appellants, Hunt and Dryden, were trading co-partners in the city of Denver. On that date the firm was dissolved by mutual consent. Prior to the dissolution the firm had done business with the Elevator Company, and had bought goods from two of their mills—the Crescent Flour Mills, and the Roller Mills.

<p> Appeal from County Court of JPitJcin County. </p>

<p> Frror to District Court of Weld County. </p>

<p>Building Associations—By-laws — Impairing Vested Rights.— Plaintiff became a member of defendant building association at a time when a by-law thereof provided that “ all non-borrowing stockholders wishing to withdraw shall be privileged so to do upon giving notice to the directors of his or her intention, and shall be entitled to receive the amount of instalments actually paid in, without interest,” Held, that plaintiff’s right of withdrawal was a vested right, of which defendant could not deprive him, without his consent, by a subsequent repeal of the by-law.</p>

<p> Appeal from District Court of Las Animas County. </p>

<p> Appeal from District Court of Arapahoe County. </p>

<p> Appeal from District Court of Arapahoe County. </p>

<p>1. Mortgage of Personalty Retaining Peivilege to Sell.—A mortgage of personal property which provides that the mortgagor may retain possession of the property until maturity of the mortgage debt, with the right to use the property and to dispose of it in the ordinary methods and channels of trade, and without an oh-ligation to account for the proceeds of sale, is, as against all but bona fide purchasers for a valuable consideration, void as to existing creditors of the mortgagor.</p> <p>2. Chattel Mortgages as between the Parties.—-As between the parties to the transaction no particular form of instrument is requisite for the creation of a valid security on personal property. It may rest in parol, or be evidenced by a written instrument. A written pledge which does not contain the statutory provision for the retention of the property by the mortgagor is good against all but creditors and bona fide purchasers without notice. It is therefore good against one who purchases the property at a foreclosure sale under a subsequent invalid mortgage.</p>

<p>1. Counties, when Sued, mat Inteepose the Statute op Limitations.—In. this state, counties being bodies corporate with'power to contract, sue, and be sued, have the right to interpose every defense to actions brought against them, legal and equitable, including the statute of limitations.</p> <p>2. When Statute op Limitations Commences to Run aoainst Countt Obdebs.—County orders, under G-en’1 Stat., 1883, containing no day for payment are payable on demand, and their presentation for payment to the county treasurer, and his indorsement of the fact, constitutes demand, acceptance, and promise to pay the amount in money. This gives the holder an immediate right of action, and the statute of limitations commences to run from that date.</p>

<p>1. Agents, and Limitations of Their Authority.—The general rule is that the limits of an agent’s authority are to he found in the instructions of his principal, hut the agent is entitled to employ all the necessary and usual means to execute his authority. This implied authority is restricted to his right to use all ordinary means justified by the usages of the particular trade in which he is engaged.</p> <p>2. When Usages of Trade Part of Agent’s Instructions.—Where the rights of third parties are concerned, the usage or custom of the particular business is to be taken as a part of the agent’s instructions, provided its existence and uniformity in the particular line be clearly established by the evidence.</p> <p>8. Traveling Salesman—Disposing of His Samples.—An agent employed to solicit orders for goods upon samples furnished him by his employer is not authorized to dispose of the samples without original authority for that purpose. His right to do so cannot be implied.</p>

<p> Appeal from District Court of Pitkin County. </p>

<p>Selling Liquob on Sunday.—Where the hoard of trustees of an incorporated town assumed control of the sale of liquors within its limits in pursuance of the statute, and passed an ordinance authorizing the issuing of licenses for the purpose, a saloon-keeper who has heen granted such license is not liable to indictment under section 839, of the Gen’l Stat., for “keeping open a tippling-house on the Sabbath day,” in the absence of an ordinance to that effect.</p>

<p>Error to County Court of Las Animas County.</p>

<p> Error to District Court of Arapahoe County. </p>

<p> Error to District Court of Chaffee County. </p>

<p>1. A Decbee Awaeding Restitution is a Final Judgment.—In an action founded on a complaint for injunction and affirmative relief under the civil code, wherein it is alleged that the plaintiffs were ousted by the defendants, by force and violence from the possession of mining property, and its possession ever since withheld from them by fire-arms and threats of violence, a decree ordering restitution of the property to the plaintiffs is a final judgment from which an appeal will lie.</p> <p>2. Decbee not Invalidated by Unnecessaby Statements of Ooubt. —Where it appears from the record that a decree for affirmative relief was based on the allegations of the complaint and upon the evidence applicable to the issue joined thereon, the decree reciting that the court found all the material averments of the complaint to he true, it cannot be disturbed by reason of any statements made by the judge at time of pronouncing it on subjects outside those upon the consideration of which the decree was based.</p>

JjJrror to District Court of Arapahoe County. In the year 1890 parties to this suit had business transactions which are best explained by the following bill of items made by defendants, and furnished the plaintiff, the correctness of which is not challenged: The balance of $1,819.97 as shown by the statement is admitted to be correct. In September of the same year, plaintiff brought suit to recover the amount and sued out an attachment.

<p> JError to District Court of Arapahoe County. </p>

<p> Error to County Court of Arapahoe County. </p>

<p>1. Extradition of Fugitives from Justice.—Under the national compact with the states relating to the return of fugitives from justice, such persons obtain no right to protection against the state whose laws they have violated by fleeing within the boundaries of another state whose laws they have not broken.</p> <p>2. Trial of Fugitive for a Different Crime.—When such a person has been returned from another state to this state by a requisition, he may be arrested and tried for a crime committed before he left, although not the same crime with which he was charged when extradited.</p>

<p> JSrror to District Court of Montrose County. </p>

<p> Error to District Court of Arapahoe County. </p>

<p> Rrror to District Court of Rio Cfrande County. </p>

<p>Ye edict on Oonelictin» Evidence.—-In an action upon a promissory-note tried to a jury, -wherein the only defense attempted to be established was want of consideration, on which the evidence was conflicting but supported the verdict for the plaintiff, the judgment rendered thereon must be affirmed on appeal.</p>

<p>1. Specific Pebfobmance upon Accounting.—A plaintiff may maintain an action to compel a conveyance of an interest in mining property under tlie following circumstances, although he has not fully complied with the contract made with the defendant and relied on for the conveyance: Other similar contracts existed between the parties;—the plaintiff had paid money to the defendant when he called for it; there had been no settlement of their accounts, and whether the contract sued on was fully performed depended on the defendant’s application of the moneys paid;—plaintiffs prayed foían accounting, and offered, in case any balance was found to be due the defendant to pay the same.</p> <p>2. When Offbb to Pat Begabded as Pebfobmance.—Under the rule, that when an accounting is necessary to determine the rights of litigants, and an offer is made by one to pay what, if anything, may be due the other, the offer is regarded as performance; the plaintiff was entitled to a specific performance of the contract upon payment of the balance found to be due thereon, it appearing that the state of the accounts between the parties was peculiarly within the knowledge of the defendant, and that it was in his power to claim a forfeiture of the contract by the election which he might exercise in the application of the funds paid him by the plaintiff.</p>

<p>Instructions and Verdict in Condemnation Proceedings. — The eminent domain statute imperatively requires that the jury sworn to determine the compensation to be awarded the owner of land condemned shall pass on the question of benefits to the residue of the owner’s land. An instruction, therefore, that there is no evidence of benefits is erroneous, and it is likewise error for the court to overrule a motion to set aside a verdict which fails to show that the subject of benefits was considered.</p>

<p> Appeal from County Court of Arapahoe County. </p>

Bingham, Teague & Compan v brought this suit as material men to recover for the materials furnished for the construction of certain buildings upon some lots in an addition to the city of Denver. The complaint stated that the stuff was sold to one Ferguson, who was the owner of the premises at the time the supplies were sold and delivered, but that he subsequently conveyed his title to the appellant, Mrs. Anderson.

<p> JError to District Court of Montrose County. </p>

<p>1. Evidence Necessary to Sustain Conviction for Rape.—Convictions for rape should not generally be sustained when they rest upon the unsupported testimony of the prosecutrix. To warrant a conviction, the evidence of the main fact should be corroborated by such facts and circumstances as are usually accessible in such cases, and are consistent with the commission of the crime, also with the conduct of the injured party.</p> <p>2. Circumstances Tending to Discredit Prosecutrix.—The failure of the prosecutrix to avail herself of assistance when at hand,—to report the assault at the earliest possible moment, and to call immediate attention to the injuries received and afterwards complained of, are circumstances tending to discredit the testimony of thé party alleged to have been outraged.</p>

Action by Jesse R.'Jackson against'N. G. Burnham for damages for malpractice. Judgment for plaintiff, a new trial denied, and defendant appeals.

<p> Error to County Court of Logan County. </p>

<p>1. When Real Estate Brokers Entitled to Commissions.—To render the owner of real property liable for commissions to a broker who has been authorized to sell it, where the sale has been effected by the owner himself, the principal fact recognized as the controlling fact in such cases must be found, that the parties were brought together and the transaction made possible by the instrumentality of the broker.</p> <p>2. Sale by Owner without Knowledge of Previous Negotiations.—Although a broker may call the attention of a purchaser in the first instance to property in his hands for sale, where he neither informs him of the owner’s name, nor introduces him to the owner, nor even mentions the fact to the owner, and the latter, without knowledge of the previous negotiations, sells the property to such purchaser, he is not liable for commissions.</p>

<p>1. Insufficient Affidavit fob Continuance.—A motion for a continuance of a cause is properly denied which, is based on the absence of a witness whose knowledge of the facts he was desired to relate was purely hearsay.</p> <p>2. Loan of Money to Stabt a Fabo Bank.—A loan of money to an individual for the purpose of being used in starting a faro bank does not come within the provisions of the statute rendering void all contracts, where the whole, or any part of the consideration shall be—-“for the reimbursement or paying any money or property knowingly lent or advanced at the time or place of such play, to any person or persons ” gaming or betting on games of chance.</p> <p>3. Saue and Dediveby of Pebsonal Pbopebty.—The transfer of horses in the hands of an agistor in payment of money previously loaned the seller, and in further consideration that the irarchaser assume tbe bill for feeding then due, which he does, and thereupon agrees to pay for the future care of the horses, is a valid sale and delivery. Neither an attaching creditor nor an officer serving the writ subsequently issued can acquire a lien on the horses, as against the purchaser, by paying or assuming the bill due the agistor.</p>

<p>1. Complaint on Pbohissoby Note—Defenses.—-To a complaint on a negotiable note alleging that the plaintiff in good faith purchased the same for a valuable consideration, it is no defense to set up a failure of the original consideration of the note without averring notice thereof on part of the plaintiff, and it is not error to strike 'out such defense on notice of the plaintiff.</p> <p>2. Motion to Quash Summons. It is not a sufficient ground to quash a summons that it was signed by the attorneys of the plaintiff, and was not under the seal of the court.</p>

Plaintiff in error, who was plaintiff below, brought suit against the defendant for the amount alleged to be due on a promissory note for $180, made at Ferris, Wyoming, dated September 4, 1884, payable on demand, with interest at the rate of six per cent per annum.

<p> ¡Error to District Court of Arapahoe County. </p>

<p>1. Correcting Indictment at Trial.—'Where the trial court permits a correction of the name of the defendant to he made in an indictment at the trial, and no objection is made or exception taken thereto, no advantage can be taken of the matter in the appellate court.</p> <p>2. Evasions op the License and Sunday Laws.—A license to sell “ bottled goods” will not justify the keeping of beer on tap, to be drawn into the pitchers and other open vessels of customers, though sales be not made in less quantities than a quart; and the law requiring saloons to be closed on the Sahhath day cannot be evaded by conducting a grocery business in the same room where the liquors are kept and sold.</p> <p>3. Keeping Open a Tippling House on the Sabbath.—To justify a conviction for keeping open a tippling house on the Sabbath it is not necessary to show that the liquor sold was drank on the premises ; it is enough that it was drawn out and delivered in open vessels.</p>

<p> Error to District Court of Arapahoe County. </p>

<p> Appeal from District Court of Arapahoe County. </p>

<p> Error to County Court of Bent County. </p>

<p> Error to District Court of La Plata County. </p>

<p> Error to District Court of Arapahoe County. </p>

<p> Appeal from District Court of Gunnison County. </p>

<p> Appeal from County Court of Arapahoe County. </p>

<p>1. Ejectment—-Party in Possession Concealing her Title.—Where a grantee of real estate in litigation suppresses knowledge of her title, and during the years of litigation following acts as the agent of her grantor, under his power of attorney, and with full knowledge of all the proceedings participates in and directs the defense, she will be held hound hy a judgment awarding the property to the adverse party and estopped to assert a title she elected to conceal and declined to defend. The grantee is not aided hy the fact that she was, at the time of the judgment and for many years prior thereto, in possession of the premises. She could acquire no title in her own right hy reason of continued possession and the statute of limitations, since possession, to ripen into title, must he open, notorious, continued, and adverse to all others.</p> <p>2. Effect op Final Judgment in Ejectment.—A judgment in ejectment in no manner vacated, and from which no valid appellate proceeding is prosecuted, remains a conclusive and final judgment directly affecting the estate, and binding upon the parties and all claiming under them. In such case it is the duty of the court to put the successful party into possession of the property.</p>

<p>Evidence of Copartnership Transaction.—In an action against two persons, as partners in the sale of a mine, for services rendered them as such by the plaintiff in making a survey, map and report of the mine, to be used by them in the sale thereof, both the employment and the partnership being denied but the sale admitted, proof of an employment of the plaintiff by one of the defendants, and that both defendants shared in the commissions or profits realized by effecting the sale, was sufficient evidence of a copartnership relation existing between the defendants as to the transaction in question to make them jointly liable for the services rendered.</p>

<p> Error to District Court of Arapahoe County. </p>

<p>An Appeal must be Pbayed within Five Days.—To constitute a valid appeal from tlie judgment of a trial court to tliis court under the statute of 1889, the appeal must be prayed within five days from the rendition of the judgment. Intervening motions to vacate the judgment,—for new trial, and the like, do not relieve from the statutory requirement.</p>

<p> Appeal from District Court of Weld County. </p>

<p>1. Sale of Real Estate by Agents —Total Proceeds Belong to Owner.—The owner of city lots employed two persons associated together as real estate agents to sell them, and fixed the price at $14,000. A purchaser was secured by the agents at $16,000, to whom a deed was executed direct by the owner, the agents accounting only for $14,000, claiming that to be the full sum received, and being paid a commission thereon by the employer. On discovering that $16,000 had been received from the purchaser the owner first demanded a return of the check given for commissions, which was returned, then sued the agents for the additional $2,000 and recovered. The judgment being right on the merits, and the issues all having been found in favor of the plaintiff and well supported by evidence,it must be affirmed.</p> <p>2. Defenses not Available unless Consistent with the Eaots.— The issue tendered by defendants, that they were themselves the purchasers of the property at $14,000, and re-sold it on their own account for $16,000, is inconsistent with tlie evidence tiiat they were employed by the owner as agents to sell the property for him, with their report to him of a sale to the purchaser at $14,000, with their acceptance of a commission on that sum, and with their statement to the purchaser that the $16,000 paid by him was the plaintiff’s price for the property. There is no ground for saying, in view of these facts, that this issue was not correctly determined against them.</p> <p>3. Retitbn ob Money Paid not Conclusive oe Settlement.—As to the other issue tendered by defendants, that the cause of action had heen compromised and settled before suit, the same was largely based on the fact that plaintiff, on learning of the true considerar tion for the sale, demanded and received a return of the check which had been delivered defendants for commissions. The testimony of defendants that the return of this check was accepted by plaintiff in full settlement of the transaction was contradicted by plaintiff, and his testimony was sufficiently corrobated to sustain the finding of the issue in his favor.</p>

<p>1. Right of Partnership to Defend Suit against one Partner. —A promissory note executed by one member of a partnership firm, consisting of two members, in part payment of horses purchased for the firm is a partnership debt, and suit being brought thereon by the payee, who made the sale and knew the facts, it was error to deny an application of the partnership firm to join the other partner as defendant, in order that the firm might assert its right to recoup damages alleged to have been sustained by it in the purchase of the animals.</p> <p>2. Statutory Right of Recoupment.—The statutory requirement that all matters of difference growing out of the same transaction be adjudicated in one action is not defeated by the giving and accepting of the individual note of one partner, as evidence of a park nership debt, when suit is brought thereon by the payee and the Arm applies for leave to defend and offset its damages growing out of the transaction for which the note was given.</p>

The plaintiff Hockaday brought suit against the defendants to collect from the county the amounts due on several county warrants or orders, aggregating $1,318.29, and the interest on the same.

<p> Error to District Court of Boulder County. </p>

<p> Appeal from County Court of Montezuma County. </p>

<p>1. Injuries to Servant Resulting prom Negligence op Vice-Principal.—One in the employ of a master, but having full control and management of a department of the latter’s business, including the servants employed therein, occupies the position of vice-principal, and the master is liable for injuries to a servant j caused by the negligenc of such vice-principal.</p> <p>2. Contributory Negligence a Question fob Jury.—The defense of contributory negligence being interposed to an action for injury to a servant, alleged to have resulted through the negligence of the person put in charge by the master, it is peculiarly the function of the jury to determine from the evidence whether the j>laintiff was acting as a reasonably prudent man would have done under like circumstances at the time of receiving the injury. And their finding on such a question, when supported by evidence, will not be disturbed by reason of mere preponderance of evidence to the contrary.</p>

Defendant in error was sued in his representative capacity as administrator of the estate of Francina Hawkins, who died in the year 1889, leaving two daughters, Mrs. Maggie A. Hurd and Mrs. Pickard.

<p> Error to District Court of Arapahoe County. </p>

<p>1. Principal and Agent—Contracts by Agent.—A duly constituted agent, who within the scope of his authority contracts in the name of his principal, incurs thereby no personal liability. It is only when he contracts in his own name, or incurs a personal responsibility, express or implied, that a personal obligation is incurred.</p> <p>2. Authority op Superintendent op Mining Corporation.—The foreman of a mining and milling company employed a man to work about the company’s mines. The superintendent changed the character of the employment, by directing him to drive a team used by the company in hauling ore and wood to its mill, but the foreman was instructed to keep his time the same as that of other employees. The mere act of changing the character of the employment from one kind of work to another, both classes of work being prosecuted by and for the company exclusively, gave the employee no claim for compensation against the superintendent individually.</p>

<p>1. Interference with Findings op Courts and Juries.—It is tlie settled practice of appellate tribunals not to interfere to set aside the finding of a trial court or jury when the questions determined thereby are purely questions of fact, unless the finding is so manifestly unjust as to carry conviction that it was the result of bias or prejudice. This rule obtains in case of a conflict of testimony if there is sufficient evidence to support the finding, although the appellate court may be of opinion that it would have found differently on the evidence.</p> <p>2. Liabidity op Ditch Company on Contract to Furnish Water.— A ditch company that contracts with a patron to furnish him water for irrigation, and fails to comply with its contract, by reason whereof the patron suffers damages in the loss of crops, is not relieved from liability to damages by the mere fact of a scarcity of water in the stream from which the ditch was supplied, if by the diligent employment of proper measures to utilize the water that was in the stream the catastrophe might have been averted. The company can only be exonerated on proof of circumstances clearly showing that the failure to perform was chargeable to vis major, and not to negligence and inattention.</p>

<p>Liability from Eobmeb Course of Dealing—Unauthorized Promise.—The owner of a farm on which he did not reside placed his son in charge, who bought hay therefor, which was paid for. Afterwards the farm was sold to a company, and the son, still remaining thereon, bought more hay therefor from the same party, without informing him who it was for, or who was to pay for it. The seller testified that the greater part was delivered and charged to the father before he learned of the change of ownership, when the bill was changed, the father and the president of the company being charged as partners. Payment not being made delivery was stopped, when the son said his. father would pay for the .hay, on which assurance the balance was delivered. Held, that want of knowledge of the change of ownership, and reliance on the former course of dealing with the son, could only charge the father, if at all, up to the time the seller had notice of the change of ownership. The promise of the son could not bind the father for hay delivered after that time without proof of his authority. .</p>

<p>1. Right of Court to Employ Certain Forms and Rules of Practice.—In. the prosecution of a proceeding which comes within a recognized class of actions, the forms and rules applicable to that class may be adopted. So a proceeding to enforce a mechanic’s lien, being of an equitable nature, it comes within the rule which recognizes the right of the court to submit questions of fact involved to the determination of a jury.</p> <p>2. Waiver of Objections to Jury Trial in Mechanic’s Lien Case. —Where the only issue, in a proceeding to enforce a mechanic’s lien, is a question of fact as to the amount of the plaintiff’s claim, and the defendants being present in court, a jury is called to try this issue and determine the amount due, no objections being interposed by defendants, but they introduce their evidence and participate generally in trial of the issue, they are not in position to complain that the court should have referred the matter to a referee to ascertain and report upon the sum justly due on the claim made, as permitted by statute in such case.</p> <p>3. Right to Lien not an Issue fob Jury.—The determination of a question of fact by a jury in a mechanic’s lien proceeding, and the adoption by the court of the finding does not necessarily involve the right of the plaintiff to a lien.</p> <p>4. Evidence of Usage and Custom.—When parties contract on a subject-matter concerning which known usages prevail they incorporate such usages, by implication, into their agreements, if nothing is said to the contrary; so where the contractors for the excavation and construction of an irrigating ditch-employed subcontractors to perform part of the work, but the contract omitted to state upon what engineer’s report the estimates of work and labor were to be based, it was proper to admit evidence of custom to determine the point.</p> <p>5. Objections to Instructions—Entire Charge to be Considered. —In construing a charge to a jury the entire charge must be considered, and when appellant does not embrace witliin tbe transcript the whole charge given, a court of review cannot decide whether a party was prejudiced or not by the refusal to give instructions prayed by him.</p>

<p> Error to District Court of Arapahoe County. </p>

<p> Appeal from District Court of Arapahoe County. </p>

<p>1. Verdict op Jury Final on Issue op Fact.—The main and only-issue presented by the pleadings in this case for the consideration of the jury being whether the defendant was guilty of corruptly exercising the duties of his office as clerk of the district court to wrongfully, unlawfully and oppressively extort from the plaintiff fees to which he was not entitled, and this issue having been determined by the jury in favor of the defendant upon sufficient evidence to support the verdict, this court, in accordance with its accepted rule of practice, will decline to interfere.</p> <p>2. Questions op Intentional Neglect Pbopeb pob Jubx.—Although the record shows neglect on part of the clerk of the court in crediting upon his fee hook, to the account of the plaintiff, all moneys received in payment of costs, the questions whether the errors were intentional and tlirougb a system of practice indulged for the purpose of wrongfully oppressing the plaintiff, and extorting money from him, were proper questions to be submitted for the consideration of the jury.</p> <p>3. Correctness of Instructions Taken as a Whole.—If one or more of the instructions, separately considered, might be held to be erroneous, but when taken in connection with the other instructions given, and the whole considered together, it appears that the issue was fairly, impartially, and distinctly submitted for the deliberation of the jury, there is no ground for interfering with the verdict.</p>

<p> Error to District Court of Arapahoe County. </p>

On the 7th of August, 1889, Harrelson, the defendant in error, brought an action of replevin against Samuel T. Smith to recover possession of twenty-two head of horses, and a herd of range cattle branded with what is known as the “ curry comb ” brand on the right side, and certain described ear-marks.

<p> Appeal from County Court of Arapahoe County. </p>

<p> Error to District Court of Boulder County. </p>

<p>1. Declarations op Insured as to Cause op Injury Received.— In an action upon an accident insurance policy by the widow of the deceased policy holder, wherein the principal inquiry under the issues was whether ■ death resulted" from an injury against which the company had insured the deceased, declarations of the deceased as to the time, nature and cause of the injury made to his physician on the second or third day after the occurrence are not part of the res gestee, and it was error to receive them in evidence over the objections of the defendant.</p> <p>2. When Declarations become Part op Res Gestae.—Declarations, to constitute part of the res gestee, must accompany the act done, or be made at the time of the act done, or be so connected therewith as to constitute a part of it, and so harmonize with the facts then occurring as to form one transaction. The restriction to the admission of such declarations is, that they must be contemporary with the principal transaction, and derive some degree of credit from it.</p>

In September, 1890, appellants instituted this suit against the appellee by filing their complaint or bill in equity, asking for an injunction. It is averred in the complaint that the defendant, The Larimer & Weld Irrigation Company, was incorporated in 1879 “as a ditch company and common carrier of water for irrigation purposes, with power to acquire a certain old irrigation ditch known as Canal No. 10, in Larimer county, for the purpose of enlarging and extending it.

<p> Appeal from, District Court of Arapahoe County. </p>

<p>1. Depositions—Objections to Intebbooatobies.—Where depositions of witnesses were regularly taken for the plaintiff in an action pending, on interrogatories and cross-interrogatories filed by counsel of the respective parties, no objections being interposed for defendant until the trial of the cause, when objections were made to the character of some of plaintiff’s interrogatories, such objections were properly overruled, as they came too late, even if otherwise valid.</p> <p>2. Sales with Intent to Defbatjd Cbemtobs — Examination- op Witnesses.—In an issue of fact as to whether a transfer of property was made to hinder, delay or defraud creditors, it is proper to inquire of the party selling, and of his agent through whom the sale was made, whether or not the transfer was made with intent to hinder, delay or defraud creditors.</p>

<p>Action on Gbotjnd of Loss bt Negligence—Pbactice.—The single issues presented by the pleadings were, a charge of negligence against the defendants in the care of certain personal property of the plaintiff, and the amount of the loss thereby sustained by the plaintiff. The jury found by their verdict, and in response to interrogatories submitted, that defendants were custodians of the property mentioned with authority to sell and apply the proceeds on a promissory note given hy the plaintiff to one of them, and that a portion of the property, of the value of $250, was lost or stolen through the negligence of the defendants. Thereupon defendants moved the court for leave to credit on plaintiff’s note the value of the goods lost, and that judgment be rendered on the verdict in favor of the defendants, assigning as an additional ground that the loss claimed should have been asserted by plaintiff in a certain action for accounting, brought by her against the defendants; but the court denied the motion and entered up judgment for the plaintiff. In such case, in the absence of the evidence produced at the trial the judgment must be affirmed.</p>