Volume 11 — Colorado Court of Appeals Reports

<p>Practice — Garnishment—Judgment Debt.</p> <p>A judgment debt is not subject to garnishment by process from a court other than that in which the judgment was rendered. , A judgment may be reached and impounded to satisfy the debts of the judgment creditor, but it must be done by proceedings in the court which has jurisdiction of the judgment sought to be reached.</p>

<p>Negligence: — Death op Wbongdoek — Subvival op Action.</p> <p>Where a party sustains personal injuries through the negligence of another, and the wrongdoer is killed by the same act of negligence, the injured party has no right of action against the estate of the deceased wrongdoer.</p>

<p> Appeal from the District Court of Otero County. </p>

<p>1. Chattel Mobtgage — Record—Notice—Annual Statement.</p> <p>Where a chattel mortgage for more than $2,500 is executed and recorded as required by statute and possession of the property retained by the mortgagor, the question as to whether or not such mortgage has become invalid by failure of the mortgagee to file an annual sworn statement as required by sec. 387, Mills’ Ann. Stats, is not affected by knowledge of such mortgage by the attaching creditor or subsequent purchaser asserting the invalidity of such mortgage.</p> <p>2. Same — Reasonable Time fob Filing Statement.</p> <p>Under sec. 387, Mills’ Ann. Stats, providing that where a chattel mortgage for more than $2,500 is recorded and the property retained in the possession of the mortgagor, the mortgagee shall record annually a sworn statement to the effect that the mortgage was given in good faith and is unpaid, the year within which such statement must be filed begins one year from the date of the record of the mortgage, and, without deciding whether or not the statement may be recorded at any time within the year from that date, it is held that such statement may be recorded within a reasonable time from the beginning of the year and that seventeen days was a reasonable time within which to record such statement.</p>

<p>1. Pbactice — Continuance.</p> <p>The action of a trial court in refusing an application for continuance is a matter of discretion with that court, and is reversible only in case of manifest abuse of discretion.</p> <p>2. Pbactice — Continuance—Absence of Counsel.</p> <p>Before an appellate court will hold a refusal of a continuance on account of absence of counsel as an abuse of discretion, it must appear that the complaining party was or might have been prejudiced thereby.</p> <p>3. Same — Documents.</p> <p>An application for continuance on account of the absence of documents should show an effort to produce the documents, that they were relevant and material to the issue, and would be admissible in evidence on the trial.</p>

<p>1. Executors and Administrators — Lands of Intestate.</p> <p>Lands of an Intestate descend to and the title vests immediately in the heirs. The administrator has no control over, or right, title or interest in the lands, except to harvest growing crops, and to lease, mortgage or sell in certain contingencies under proper order of the court having probate jurisdiction.</p> <p>2. Same — Statutory Construction — Pleading.</p> <p>Sec. 4691, Mills’ Ann. Stat. which authorizes and makes it the duty of administrators and executors to receive, take possession of and sue for and recover rents, issues and profits of the real estate of the decedent, does not authorize the administrator to take possession of lands or tenements, nor to execute or terminate a lease, nor to sue for the ouster of a tenant, unless it be for default in the payment of rent or other condition of the lease, and in such case it would be necessary for him to allege in his complaint the facts required to show his authority to institute and maintain the suit and the default of the tenant.</p>

<p>1. Pkactice — Evidence.</p> <p>Where by stipulation of parties a cause was submitted upon one issue and it was agreed that the jury should consider only that single issue, it was not error for the court to exclude evidence not pertinent and material to that issue, though such evidence was legitimate and material testimony in the case as it stood without the stipulation.</p> <p>2. Instructions — View of Locus in Quo.</p> <p>Where a jury was permitted to view the premises, damage to which was in issue, and the court instructed the jury that they might take into consideration what they had observed together with the testimony introduced in the case in making up their verdict, such instruction while not approved was harmless error where the other evidence in the case was sufficient to sustain the verdict, without the view of the premises.</p> <p>3. Appellate Practice- — Instructions—Exceptions.</p> <p>An objection and exception to instructions which fail to call the attention of the trial court to the error complained of are not available to cause a review of the instructions on appeal.</p>

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

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

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

<p>Intoxicating Liquors — Sale by Druggist — Medical Purpose.</p> <p>Where a city ordinance made it unlawful for any person to sell intoxicating liquors without a license, but provided that it should not apply “ to the selling or giving away of intoxicating or malt liquors by any druggist upon the prescription of a reputable physician and for medical purposes,” a sale by a druggist for medical purposes without a physician’s prescription was within the proviso and was not unlawful.</p>

<p>1. Attachments — Keturn —• Contradictory Evidence — Amendment.</p> <p>The return of an officer upon a writ of attachment is conclusive against him and the sureties on his official bond, and in a suit against an officer and the sureties on his bond it was error to admit evidence contradicting the officer’s return. An incorrect return may be amended so as to show the facts, but the amendment must be made in the cause in which the writ issued, and when so amended becomes the return.</p> <p>2. Attachments — Order oe Sale — Execution.</p> <p>Sec. 2013, Gen. Stats. (Mills’ Ann. Stats, sec. 2113) provides that in cases of attachment in justices’ courts, if judgment be recovered by plaintiff the justice shall issue an order of sale to the constable, directing him to satisfy the judgment out of the proceeds of the property attached, and if not sufficient to satisfy the judgment, execution shall issue as in other cases. Where an attachment issued from a justice’s court was returned by the constable as having been levied upon certain property of defendants, but that the property was after-wards released, and judgment was recovered by plaintiff against the defendants and sustaining the attachment, as the property attached had been released it passed out of the jurisdiction of the justice, and he could issue no order of sale against it, and it was proper to issue execution upon the judgment at once without having first issued an order of sale.</p>

<p>1. Breach of Promise of Marriage — Seduction—Instructions.</p> <p>In a suit for damage for breach of promise óf marriage and seduction an instruction to the effect that if the jury found that the defendant attempted to prove plaintiff was a lewd woman and of bad character, and he had failed in this particular, and that the attempt was not made in good faith, or with reasonable hope or expectation of success, they might take this fact into consideration in aggravation of the damages, was not erroneous.</p> <p>2. Same.</p> <p>In a suit for damage for breach of promise of marriage and seduction, where the defendant in his verified answer denied carnal knowledge of the plaintiff and in his testimony admitted such carnal knowledge,'it was not error for the court to instruct the jury that they might take into consideration the defendant’s sworn denial in conjunction with his testimony on the trial in determining the weight and credibility to be given to his testimony.</p> <p>3. Same — Consent.</p> <p>In an action for damage for breach of promise of marriage and seduction, if a promise was made, and the plaintiff having agreed to marry, afterwards consented to the intercourse with defendant she might still recover damage for such acts.</p> <p>4. Same — Intercourse Prior to Promise.</p> <p>In an action for damage for breach of promise of marriage and seduction, the criminal misconduct of the plaintiff, known to the defendant before he made the promise and participated in by him, cannot be used in mitigation of the damage. The fact that defendant had intercourse with plaintiff before as well as after the promise could not affect the damage plaintiff had a right to recover for the breach of contract upon which her action was based.</p> <p>5. Evidence — Credibility of Witness — Preponderance.</p> <p>The question of the credibility of witnesses is entirely with the jury and the question of preponderance is not solely determined by the number of witnesses who may be opposed. In an action for breach of promise and seduction it was proper to refuse an instruction to the effect that if one witness testified to certain acts and conversation, and another witness with equal credibility denied either the acts or the conversation and there was no corroborative proof, the case must fall.</p>

<p>1. Appellate Practice — Evidence.</p> <p>Where on all the evidence offered the trial court concludes that the facts are with the successful party, the appellate court, except under very exceptional circumstances, will not disturb the judgment because it is unsupported by the evidence.</p> <p>•2. Evidence.</p> <p>In an action for meats supplied by a butcher to a hotel keeper from day to day upon orders from such hotel keeper, where the orders were immediately placed in the blotter or day book, and afterwards delivered at the hotel, the testimony of the proprietor of the shop, and the books of account, which were produced, in the absence of countervailing testimony, sufficiently established the sale and delivery of tlie goods, without producing the driver who delivered the packages to the hotel.</p> <p>3. Same.</p> <p>In an action by a butcher against the guarantor of a hotel keeper for meats furnished the hotel, it is not competent evidence to show how much meat had been delivered by the butcher to the hotel keeper during a definite time after the expiration of the guaranty and while the butcher was still supplying the hotel keeper, to show that the butcher’s meat bills for the hotel were much larger during the life of the guaranty than afterwards, unless the offer had been followed up by a further one to show a failure to deliver some of the meats for which the defendant was sued, or unless the case prior to the-offer of the evidence had shown the nondelivery of part of the bill sued for.</p>

<p>1. Evidence — Admissions op Aq-ent.</p> <p>The declarations of an agent, to he binding on the principal, must be' made concerning the business which he is authorized to transact, and while he is engaged in its transaction, whether he be a general or special agent.</p> <p>2. Evidence — Witness out op State — Evidence Given at Eobmeb Trial.</p> <p>Where the evidence of a witness in a case was taken down and preserved by the court stenographer, and the witness afterwards removed from •the state, such evidence was admissible in a subsequent trial of the same case between the same parties.</p>

<p>1. Building and Loan Associations — Rights of Withdbawing Membeb.</p> <p>Where the by-laws of a building and loan association provided that a stockholder might withdraw from the association by giving two months’ notice of such intention, and at the expiration of this time should receive the full amount of money paid in as dues, with a specified rate of interest, deducting therefrom all fines and arrearages together with a fair proportion of the losses and expenses incurred by the association, H., a member, gave notice of his intention to withdraw in May, but at the end of the two months was notified by the secretary that on account of so many notices of withdrawal preceding his, the association could not pay him and he continued to pay dues and assessments until October when the board of directors passed a resolution in which twelve and one half per cent was determined to be a fair proportion of the losses and expenses and H. was notified that his withdrawal notice would be honored subject to this resolution. Held that H. continued to be a member of the association and was bound by the action of the board of directors, and that the withdrawal value of his stock was that of October and not of the time he gave notice of withdrawal, and was subject to a deduction of the proportionate losses and expenses up to that time.</p> <p>2. Same — Evidence.</p> <p>Proof that a printed notice of the withdrawal value of stock in a building and loan association was posted in the office of such association without proving that it was done or authorized by the board of directors, is not sufficient evidence to establish the withdrawal value of the stock.</p> <p>3. Same — Bubdbn of Pboof.</p> <p>Where in an action against a building and loan association by a withdrawing member for the withdrawal value of his stock, he alleges that a resolution of the boar’d of directors was passed fixing the proportion of losses and expenses at twelve and one half per cent, but that such resolution was as to him nuli and void, the burden was on the plaintiff to show by competent evidence that the association had not sustained such losses and that his stock was of greater value.</p>

<p>1. Certificate of Purchase of State Lard Board — Title.</p> <p>A certificate by the state land board of the purchase of land forms but an imperfect or inchoate title which cannot become perfect or complete until the contract of purchase be entirely completed, the consideration money paid, and the fee passed out of the state by grant to the grantee named in the contract. But such imperfect or inchoate title is subject to incumbrance and transfer as fully and as freely as an absolute title, and the transferee of such title gets a good title coupled with the right to complete the purchase from the state by payment of the unpaid part of the purchase price.</p> <p>2. Corporations — Authority of Officer — Purchaser with Notice — Rights of Equitable Owner.</p> <p>The state land board sold to a corporation certain lands, issuing to the corporation a certificate of purchase which gave to the corporation a right to a patent upon payment of the balance of the purchase money. The corporation mortgaged the land and the mortgage was foreclosed, the plaintiffs becoming the purchasers. After-wards H., the president of the corporation, transferred to B. the certificate of purchase in payment of an individual debt owing by H. to B. "B. paid to the state the balance of the purchase money, and procured a patent to the land to himself. B. then transferred the land without consideration to other parties who, without consideration, mortgaged it to defendant, a loan company. The president of the loan company, through whom the transaction was had, had knowledge of B.’s want of equity and assumed to pay to B. the amount of the debt owed to him by H. Held that the transfer by H. to B. was without consideration, and that B. took the transfer charged with notice that H. as president had no authority to transfer the property of the corporation in payment of his individual debts. That the loan company acquired no better title than B. had, and that plaintiffs could maintain their bill to compel the conveyance to them of the legal title upon payment of the amount paid by B. to the state, with interest.</p>

<p>1. Resumixo- Tbust.</p> <p>Where one furnishes another money to buy land under an agreement that the purchaser shall take title and hold it for the benefit of the person furnishing the money and the land is purchased, a resulting trust arises in favor of the party furnishing the money, whether or not the identical money furnished be used to make the purchase, and notwithstanding the purchaser may have used the money furnished him for his own use and supplied its place with money of his own.</p> <p>2. Guabdian ad Litem — Stipulation—Evidence.</p> <p>A guardian ad litem has authority to stipulate as to the condition of a bank account to obviate the necessity of introducing in evidence the bank books. Such stipulation cannot be taken as prejudicial to the minor’s interest.</p> <p>3. Appellate Pbactioe — Nonpeejudicial Ebbob.</p> <p>The rejection of evidence that only bears remotely on the question at issue which is established by direct proof, if an error, is one which could not affect the result and is not prejudicial.</p>

<p> Appeal from the County Court of Hinsdale County. </p>

<p>1. County Warrants — Assignment—Nonnbgotiable.</p> <p>County warrants may be transferred by assignment and title passes to tbe assignee but they possess none of the characteristics of negotiable commercial paper. The liability of the county is the same whether the warrants are in the hands of an assignee or the orignal payee.</p> <p>2. Judgment Against County — Payment—Void County Warrants —Mandamus to Levy Tax.</p> <p>In a suit against a county it was agreed between the plaintiff and the board of county commissioners that plaintiff should pay the costs of the suit and should receive in satisfaction of his judgment county warrants drawn against money in the county treasury not otherwise appropriated, and that the county would make no defense. Upon rendition of judgment and the presentation to the board of a transcript showing satisfaction the board delivered to the plaintiff warrants of the county as agreed, which he received and accepted in full satisfaction of the judgment, and instructed the clerk to enter satisfaction on the judgment docket, which the clerk failed to do. The warrants thus received were afterwards presented to-the treasurer who refused payment and indorsed on them “no-funds.” The statute then in force provided that a judgment against a county should be paid by the levy of a tax for that purpose with a proviso that the board, instead of levying the tax, might pay the judgment by a warrant upon the county treasurer’. Held that the authority to issue a warrant at once instead of levying a tax contemplated the presence in the treasury of money applicable to the payment of the judgment, and unless there was money in the treasury to meet the warrant its issuance was unauthorized and the board had no alternative except to levy the tax, and the warrants thus issued and received by plaintiff constituted no payment of the judgment. If satisfaction had been entered on the record, a proceeding to cancel would be sustained, but as no satisfaction was entered of record mandamus to compel the board to levy the tax should be sustained upon the judgment.</p> <p>3. Judgment Against County — Discretion of Board — Statutory Construction.</p> <p>Section S27, (Sen. Stats, as amended Sess. Laws, 1887, page 240, provides-that “when a judgment shall be given and rendered against a county * * * no execution shall issue thereon but the same may be paid by the levy of a tax, but nothing contained in this section shall operate to prevent the county commissioners from paying all or any part of any such judgment by a warrant drawn by them upon the ordinary county fund in the county treasury * * * and provided further, that the powers herein given to the board of county commissioners shall not be construed as requiring said board to levy any special tax to pay any judgment, unless in its discretion the said board-shall determine.” Held that the effect of the last proviso was not. to leave it discretionary with the board of commissioners to say whether or not a judgment against a county should ever be paid, but should be construed as leaving it to the discretion of the board to pay a judgment either by levying the tax or by warrant drawn on the ordinary county fund, when the judgment can be paid by warrant, but if it cannot be paid by warrant on the ordinary fund the special tax must be levied.</p> <p>4. Judgments — Collateral Attack.</p> <p>In an action for mandamus to compel the board of county commissioners to levy a tax to pay a judgment against a county the judgment is conclusive of all questions which were or might have been litigated in the suit.</p>

<p> Error to the District Court of Rio Grande County. </p>

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

<p>Opinion Followed.</p> <p>This ease is reversed on the same grounds as stated in the opinion in the case of The People ex rel. Reynolds v. The Board of County Commissioners of Rio Grande County, ante, p. 124.</p>

<p>1. Practice — Juries—General Verdict — Special Findings.</p> <p>Sec. 199, Civil Code, leaves it discretionary with a jury to return a general or special verdict. It then makes it their duty in case they return a general verdict, to find specially upon any particular questions of fact which may be submitted to them by the court, and provides that when the special finding shall be inconsistent with the general verdict, the special finding shall control, and judgment be given accordingly. Under this section a special finding will prevail against the general verdict, only when it clearly appears from the record that there is irreconcilable antagonism between them; and if they can be harmonized upon any hypothesis, the judgment will follow the general verdict.</p> <p>2. Negligence — Proximate Cause.</p> <p>Plaintiff was a passenger on defendant’s railroad. Through the negligence of defendant’s servants the car doors were suffered to remain open, so that the car was filled with cold air and became uncomfortable. The plaintiff to remove the cause of the discomfort undertook to close the doors, and as he was in the act of closing the rear door the car, going around an abrupt curve, gave a sudden and violent lurch which threw plaintiff through the doorway and upon the ground, causing the injury complained of. Held that plaintiff had a right to protect himself by closing the doors of the car, and while the immediate cause of the injury was the sudden lurching of the car the plaintiff would not have been exposed to the danger hut for the negligence in leaving open the car doors, and that the injury was the direct and logical result of tlie negligence, which was therefore the proximate cause.</p> <p>3. Same — Erroneous Instruction — Special Finding.</p> <p>The trial court at defendant’s request instructed the jury, “ If you believe from the evidence, that the doors of the car in which plaintiff was x'iding wex-e left open, the fact is not to be considered as establishing any negligence on the part of the defendant fx-om which a cause of action could arise to plaintiff, for the injury which happened to him cannot be considered a proximate result of such act.” The jury returned a genex-al vex-dict for plaintiff and a special finding that the negligence of defendant was “leaving the car door open.” Held that the instruction of the court was erx’oneous, and that the special finding of the jury was consistent with the general verdict. The fact that the jury disregarded an exroneous instruction of the court in making their special findings did not create such inconsistency between the special finding and general verdict as would entitle the defendant to a judgment.</p>

<p>1. Courts — Jurisdiction—Condemnation Proceedings.</p> <p>'County courts are courts of general jurisdiction, with, concurrent authority with the district courts in all matters within the limit placed on their jurisdictional authority. Condemnation proceedings for the enlargement of ditches, where the amount involved does not exceed $2,000, is within the jurisdiction of the county court.</p> <p>.2. Practice — Certiorari—Jurisdiction.</p> <p>■On a petition to the district court for certiorari to restrain the county court from further proceeding with a condemnation proceeding on the ground that the county court is without jurisdiction, the petition filed in the county court, and not the petition for certiorari, must be looked to to determine the question of the jurisdiction of the county court.</p> <p>■3. Practice — Certiorari—Final Judgment.</p> <p>An application to the district court for certiorari to restrain the county court from proceeding in a matter before that court, is premature until the county court has finally adjudicated the matter.</p>

<p>Pleading and Pbactice — Deed on Teust — Release.</p> <p>A complaint, by tbe legal holder of a promissory note secured by deed of trust, to cancel a release of the deed of trust which states that the debt is unpaid and that the property was released by the trustee without the knowledge or consent of plaintiff sufficiently states a cause of action. A complaint is not demurrable because it goes into needless detail.</p>

<p> Appeal from the District Court of Boulder County. </p>

<p> Appeal from the District Court of Rio Grande County. </p>

<p> Appeal from the District Court of Rio Grande County. </p>

<p> Error to the District Court of El Paso County. </p>

<p>Appeal Bond.</p> <p>On an appeal from the county court to the district court, the county court made an order fixing the time within which the bond should be filed, and directing that it be approved by the clerk. Within the time a bond was presented to the clerk and filed, but he declined to enter an order of approval. On the same day the sureties notified the clerk that they withdrew from the bond, and also notified the obligee in the bond that they withdrew. Afterwards, and at tlie same term of court the county court on motion of the principal obligee approved the bond nunc pro tunc as of the day of its filing. Held, that in an action on the bond an answer by the sureties setting up the foregoing facts and the further fact that the principal obligors had induced them to sign the bond by representation that before filing they would secure the signature of a certain other person as surety and failed to do so, stated no defense to the action, and a demurrer on that ground should have been sustained.</p>

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

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

<p> Appeal from the District Court of El Paso County. </p>

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

<p>1. Pleading — Legal Conclusion.</p> <p>A pleading which, amounts merely to a legal conclusion is properly stricken out on motion.</p> <p>2. Fraudulent Conveyance.</p> <p>Where the owner of real estate mortgaged it for about its full value and afterwards gave to her husband a power of attorney with full power to dispose of the property for any purpose and in any way that she herself might do, and the husband as attorney deeded the property to himself and afterwards deeded it direct to the mortgagee in payment of his wife’s indebtedness, held that other creditors of the wife had no grounds for complaint and could not set aside the conveyance. Under the, power of attorney the husband could convey the property in payment of the wife’s debts, and the property having been appropriated to pay her debts and at its fair value, the fact that the husband first deeded the property to himself and then direct to the mortgagee instead of deeding it as attorney to the mortgagee, was immaterial and worked no fraud or prejudice to other creditors.</p>

<p> Appeal from the District Court of La Plata County. </p>

<p> Appeal from the District Court of La Plata County. </p>

<p> Appeal from the District Court of Rio Grande County. </p>

<p>Contracts — Partnership—Consideration.</p> <p>An agreement for partnership, like other contracts, must be founded on a consideration. A naked promise by one person that another shall share in the profits of his enterprise, where the other furnishes no capital or labor or anything towards the promotion of the common enterprise, is void.</p>

A bribe statement of a few facts which will not otherwise appear in the opinion will afford those who are not directly concerned in the suit a little clearer notion of the matters involved. There were several corporations organized to supply the city of Denver with water. The method and character of their formation, the conditions of their various charters, or the law under which they operated in no manner affects the question at issue.

<p>1. Pleading — Nonjoinder oe Parties.</p> <p>A complaint must show on its face a defect of parties in order to be reached by demurrer on that ground.</p> <p>2. Mortgages — Assumption of Incumbrance.</p> <p>Where the owner of several lots mortgaged them and afterwards sold one of the lots, the purchaser assuming and agreeing to pay the mortgage debt as part of the consideration and purchase price, and afterwards the mortgagor deeded the other lots to his wife, and upon foreclosure the first lot failed to sell for enough to satisfy the mortgage debt, and the wife to protect her lots was compelled to pay the balance of the mortgage debt, she had a right of action against the purchaser of the first lot and was entitled to a judgment for the amount paid by her with interest.</p> <p>3. Deed of Husband to Wife — Consideration.</p> <p>Where a husband deeds property to his wife prior to his death, as between her and other heirs, it is immaterial that there was no consideration. And in an action by the wife against one who assumed an incumbrance on the property, placed there by the husband, the heirs of the husband are not necessary or proper parties.</p>

<p>1. INSTBUCTIONS.</p> <p>It is not error to refuse an instruction asked even though it is a correct statement of the law, where the instructions given embody the same principle, and are equally favorable to the party requesting the instruction refused.</p> <p>2. Eazlboads — Negligence—Killing Stock.</p> <p>In an action against a railroad company for killing stock, where the evidence showed that the road at the point where the animals were killed was inclosed by a good and lawful fence, the burden is then on the plaintiff to show that the killing was through the negligence of the railroad company.</p>

<p>1. Accident Insurance — Proof os Injury — Evidence.</p> <p>In an action on an accident insurance policy, where the policy required notice to be given the company in case of accident, the plaintiff’s testimony that notice and proofs of death were sent the company within the time, made a prima facie case of proof of notice. The fact that plaintiff could not remember what was contained in the proofs could not defeat her proof.</p> <p>2. Same — Waiver os Proof of Injury.</p> <p>A refusal to pay a policy of accident insurance on the ground of misrepresentation in the application waives the requirement for preliminary proofs of injury.</p> <p>•3. Illegal Marriage — Presumption.</p> <p>No man is presumed to do an unlawful act. Where a man contracts marriage or enters into marriage relations, there can be no presumption that he has another living lawful wife.</p> <p>4. Insurance Policy — Ealse Representations — Burden of Proof.</p> <p>In an action on an accident insurance policy, if the defendant seeks to avoid the policy on the ground of a false representation in the application that plaintiff was the wife of the assured, the burden of proof is on the defendant to show that the representation was false.</p> <p>5. Accident Insurance — Intentional Injury — Presumption — Burden os Proof.</p> <p>In an action on an accident insurance policy, which provides that the company shall not be liable for intentional injuries inflicted by the insured or any one else, where the evidence shows that the assured came to his death by a gunshot wound, but there is no evidence of how or by whom the wound was inflicted, the law will not presume that the injury was intentionally inflicted, but the burden is on the defendant to show that the death was from one of the excepted causes.</p> <p>6. Insurance — Warranty.</p> <p>In an application for accident insurance, tire following statement: “ Write policy payable, in case of death to Mrs. L. whose relationship to me is that of wife,” is not a warranty that the beneficiary is assured’s wife, or a material representation, but is to be construed only as a description of the person of the beneficiary.</p> <p>7. Insurable Interest.</p> <p>A woman living with a man as his wife, although they are not legally married, has an insurable interest in the man’s life.</p>

<p>1. Eobeign Cobpobation — Contbacts—Right to Sue.</p> <p>Sections 261 and 262, Gen. Stats. (Mills’ Ann. Stats, secs. 500 and 501) requiring every foreign corporation to file in the office of the secretary of state a copy of its charter, etc., and providing that a failure so to do shall render its officers, agents and stockholders liable on all its contracts made in this state during its default, does not invalidate contracts of such corporation made in the state without having complied with the statute, nor affect the right of such corporation to sue upon any such contract.</p> <p>2. Pleading — Exhibits.</p> <p>A policy of insurance attached to a complaint and referred to in the complaint as part of it, cannot be considered as a part of the complaint, nor consulted in determining whether or not a cause of action is stated. The complaint must state a cause of action without regard to exhibits whether they be attached or not.</p> <p>3. Practice — Insurance Policy — Breach of Condition.</p> <p>In an action on an insurance policy if the defendant relies on the breach of a condition in the policy as a defense, the condition and the facts constituting its breach should be set forth in the answer.</p> <p>4. Insurance Policy — -False Representations.</p> <p>In an action on an insurance policy, where the defendant answered by alleging that the policy was obtained by false representation of ownership fraudulently made by the assured, to sustain such allegation, it must appear not only that the representation was made, but that it was false and was made by the assured with knowledge of its falsity.</p> <p>6. Same.</p> <p>In an action on an insurance policy where the evidence was to the effect that the assured had taken out á policy in the name of himself and company, at the time referring to another party as his partner, and afterwards upon application for additional insurance stated that the former policy ought to have been written to him alone, and with the consent of the insurance company transferred the policy to himself, stating that “ he owned the entire property, mines and • all, that he had got tired of fooling around with other people, that he had to pay all the money out and everything of that kind, and was going to have the whole business,” held, insufficient to show a false and fraudulent representation of sole ownership.</p> <p>6. Insurance — Proof of Loss — Waiver.</p> <p>The condition in an insurance policy requiring the assured in case of fire to furnish the company with a written verified statement of the loss may be waived by acts of the insurer, which evidence a recognition of the liability and an effort to adjust the loss without such proof, or by a denial of liability for other reasons.</p> <p>1. Same.</p> <p>Where there is no conflict in the evidence the question as to whether or not there was a waiver of the condition of proof of loss in an insurance policy is one of law for the court to determine.</p> <p>8. Same.</p> <p>In an action on an insurance policy where the evidence showed that immediately after the fire the assured notified the general agent of the insurer, and that the agent visited the premises, and proposed an arbitration to determine the amount of the loss, which being declined by the assured, the agent sent a party to make and report an estimate of the damage which was done, that the agent had frequent conversations with the assured about the matter, but never indicated to the assured that any proof of loss was necessary or desired, held, that the action of the agent of the company was a waiver of the condition requiring proof of loss.</p> <p>9. Same.</p> <p>In an action on an insurance policy if the defendant answers denying liability, placing tbe defense upon other grounds than a failure by the assured to furnish proof of loss, it is a waiver of the condition requiring proof.</p> <p>10. Insurable Interest.</p> <p>An insurable interest in property does not depend upon the completeness or validity of the title by which the property is held. A limited or qualified interest is enough. If one has such interest in the property that in case of its destruction he will suffer a loss, he has an insurable interest. And he may describe the property as his and himself as the owner.</p> <p>11. Same — Evidence.</p> <p>In an action on an insurance policy covering a mill and machinery, there was evidence that the assured acquired an ownership in the property by agreement with the parties who projected the enterprise, in consideration of money advanced for the building and machinery; and it tended to show that he was the sole owner of the machinery, and was in possession and claiming sole ownership of the mill, though his right to the mill building was disputed. Held, that he had an insurable interest in the property.</p> <p>12. Instructions.</p> <p>Although an instruction may be unnecessary and superfluous, yet if it could do the complaining party no harm it is not a valid ground of complaint.</p> <p>13. Instructions — Evidence—Fraud.</p> <p>In the absence of evidence tending to establish fraud, and to connect the plaintiff with it, it was proper to refuse an instruction requested by defendant defining to the jury how fraud may be proven.</p> <p>14. Same.</p> <p>In an action on an insurance policy, although the evidence may tend to prove that a third party burned the property, if it fails to connect the assured with the act, it is proper to refuse an instruction based upon assured’s connection therewith.</p>

<p>Pbaotice — Ceoss-Examination oe Witness.</p> <p>In an action against a county to recover the value of services rendered in the publication of nominations for election, the only issue being as to whether the paper in which publication was made was a newspaper, it was reversible error to permit counsel for defendant to cross-examine plaintiff to an unwarrantable extent and on mattors foreign to the issues. Such an examination tended to prejudice the plaintiff's case before the jury.</p>

<p>1. Appeals and Writs of Error — Two Remedies.</p> <p>A party cannot pursue two remedies at the same time. A party desiring to have a final judgment of a court reviewed must do so either by appeal or writ of error. He cannot pursue both methods at the same time. But where a party has commenced an appeal, and by failure to file the record within time has lost his right of appeal, he is then by abandoning the appeal, entitled to have his case reviewed upon writ of error.</p> <p>2. Injunction — Collection op Judgment.</p> <p>A party is entitled to an injunction to .restrain the collection of a judgment upon the ground that the judgment has been satisfied.</p>

<p>Minino Lease — Construction—Net Proceeds.</p> <p>A mining lease provided that the lessees were to pay to the lessors as royalty a certain per cent “ on all net proceeds from all smelter and freight charges and mill returns on all ore” and also “ an undivided one-fourth nonassessable interest to the within lease free from all expense whatever * * * said one-fourth interest being the net pro- ' ceeds from said ore taken from said lease.” Held that construing both clauses of the lease together the phrase “ net proceeds ” meant after deducting all the expenses for treating the ore but not deducting any expense incurred in developing the mine. And that the lessor was not chargeable with any part of the expense incurred in working the mine.</p>

<p> Appeal from the District Court of El Paso County. </p>

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

<p> Appeal from the District Court of Fremont County. </p>

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

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

<p>1. Appeals and Writs op Error.</p> <p>Where in a replevin suit the plaintiff recovered judgment against the defendant, but it was adjudged that an intervenor had a prior lien on the property, an appeal by the plaintiff from the judgment giving the intervenor a prior lien, did not deprive the defendant of the right to afterwards have the judgment reviewed on writ of error.</p> <p>2. Replevin — Possession op Property.</p> <p>Replevin will not lie against one not in possession of the property. It is not proper to render judgment against a defendant for the possession of property which he did not have at the commencement of the suit, nor for damage for its retention.</p> <p>3. Same — Instructions.</p> <p>In a replevin suit where the evidence showed that defendant was not in possession of part of the property, an instruction by the court to-the effect that the property in controversy was constructively in the-possession of the defendant, and that authorized the jury to find against defendant a verdict for damages for its unlawful detention, was erroneous, and where the jury returned a verdict for damage-against defendant, it was not a harmless error, neither was it cured by a remittitur of part of the damage by the court.</p>

<p>1. Mechanics’ Liens — Statutory Construction.</p> <p>Wliere under the mechanic’s lien statute it is sought to make one person liable for the debt of another, the statute must be strictly construed, and the party claiming the lien under the statute must bring himself clearly within its provisions.</p> <p>2. Same — Reputed Owner.</p> <p>Where the owner of a mining claim entered into a contract with S., whereby he was to convey to S. an undivided one-half interest in the claim upon the completion by S. of a certain amount of development work, S. was not the owner, or reputed owner, or agent of the owner of the property, as contemplated in sec. 1, page 316, Laws, 1893, such as would give a mechanic’s lien on the property to laborers doing work on the mine under a contract from S.</p>

<p>Appeal from the District Court of Pueblo County,</p>

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

<p>1. Statutory Construction — Public Official — Loaning Money.</p> <p>Section 2 of the act of April 17,1889 (Mills’ Ann. Stats, sec. 1249), which prohibits the loaning, with or without interest, by any public official, of any money in his possession or keeping, care or control, by virtue of his office, was not intended to prohibit the deposit of money in banks for safekeeping, and a bond given to an officer to secure such deposit is not against public policy.</p> <p>2. Ebbs — Payment to County Tjseasubeb.</p> <p>An officer is not responsible to the county for tbe fees of his office, and is not required to pay them over to the treasurer until such fees exceed his salary as fixed by law. Such fees may be deposited in bank, and a bond given to secure such deposit may be enforced.</p> <p>3. Pbactice — Change of Venue.</p> <p>Where a party to an action applied for a change of venue of the cause to another division of the same court on the ground of prejudice of the judge before whom it was pending, and an order was made changing the cause to another division as prayed, the party cannot afterwards complain of the action of the court in making the change on the ground that it should have been changed to another county.</p>

<p>Affirmed on the opinion in the case of The Jefferson County Bank v. Hummel, ante, p. 337.</p>

<p>1. Tbustee’s Deed — Pbima Facie Evidence.</p> <p>In an action at law for possession, a trustee’s deed to real estate sold under a deed of trust is prima facie evidence of the facts recited therein.</p> <p>2. Foecible Entby and Detainee — Demand eob Possession.</p> <p>In an action of forcible detainer for possession under a trustee’s deed to real estate sold under deed of trust, it was not necessary that the demand for possession should fix any time within which possession was required; the plaintiff was entitled to and had aright to demand immediate possession.</p> <p>3. Same — Title to Peopebty.</p> <p>In an action under the forcible entry and detainer statute for possession, the title to the realty was not involved and could not be inquired into. If the defendant desired to attack the sale and trustee’s deed under which plaintiff held the legal title, he should have done so in a proceeding in equity.</p>

<p> Appeal from the District Court of Pueblo Coumty. </p>

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

<p>1. Cities and Towns — License—Bonds.</p> <p>Where the ordinances of a city authorize the issuance of license to mechanics following the trade of plumbers, in order to maintain an action for damage against the city for refusing to issue a license, the plaintiff must prove that he has done everything which the ordinances require. And where it was required that an application for license must be accompanied by a bond approved by the city council, be must prove that he tendered a bond in the form and amount required and that it was approved by the council.</p> <p>2. Cities and Towns — Touts.</p> <p>A city is not liable in tort for the manner in which it exercises its discretionary and legislative powers. Where the bond of an applicant for plumber’s license was rejected by the city council, he should have given a new bond to meet the objection, or else have taken steps to compel the council to approve the bond presented.</p> <p>3. License — Bond.</p> <p>Where an applicant for license as a plumber executed his bond under the name of the North Denver Plumbing Company, it was properly refused unless the company had been incorporated.</p>

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

<p>1. Deceit.</p> <p>False representations by a vendor that a creek, bordering land sold, had never overflown and would not overflow its banks, relied upon by the vendee, who was ignorant of the facts, will support an action for damage, caused by an overflow, to property placed on the land, in reliance on the representations, by the vendee.</p> <p>2. Same — Contributory Negligence.</p> <p>In an action for damage to property caused by overflow from the waters of a creek, by a vendee against a vendor, the plaintiff is not chargeable with contributory negligence, where he relied upon the false representations of the vendor that the creek never overflowed.</p> <p>3. False Representations — Instructions.</p> <p>In an action for deceit it was proper to refuse an instruction based on the ignorance of the defendant of the falsity of the representations when his own evidence showed that he knew they were false.</p>

<p>1. Pbincipal and Agent — Commissions.</p> <p>Where real estate was placed in the hands of an agent to he sold at a certain price, and the agent found a customer to whom he showed the property and gave her the price, and she asked for time to consider the matter, and while she was considering the matter another agent of the owners who held a mortgage on the property learned of the fact and told the customer that he could procure the property for her at a less price, and took the customer to the owners with whom she negotiated a purchase at a less price, held that the first agent was the procuring cause of the sale and was entitled to his commission.</p> <p>2. Same.</p> <p>Where an agent procured a purchaser for real estate and while she was considering the purchase the owners negotiated a sale to her at a less price, the fact that they deeded the property to another party who deeded it to the purchaser would not relieve them from paying commission to the agent.</p> <p>3. Same.</p> <p>Where a real estate agent found a customer for property placed in his hands for sale, and the owners knowing that the customer was considering a purchase from the agent sold to her at a less price, it was not necessary that the customer should have been personally introduced to the owners by the agent to entitle him to his commission.</p>

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

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

<p>1. CONTRACTS — OBAL TESTIMONY.</p> <p>Oral testimony of agreements made before and at the time of executing a written contract, is incompetent to change or vary the written instrument, all prior negotiations being merged, in the written agreement.</p> <p>2. Contbacts — Tax List — Publication.</p> <p>Under act of the special session of the legislature of 1894 (Sess. Laws, 1894, page 45], it was made the duty of county commissioners to advertise for bids to publish the delinquent tax lists, and to let the contract to the lowest responsible bidder. The act is mandatory and county commissioners must publish the tax list in accordance with the terms of this act. Where a board of county commissioners advertised for bids and let the contract for publishing the delinquent tax list they had no authority to rescind such contract and enter into a new and different contract with the publisher, and a subsequent and different contract entered into between the publisher and commissioners was void, and an injunction would lie to prevent the carrying out of such contract.</p>

<p>1. Instruction.</p> <p>The fact that each separate instruction given in a cause, is not a complete submission of all matters in dispute, does not make it objectionable. If the instructions given are consistent with each other and taken together, they cover the entire ground, and fully and fairly submit the questions involved, they are not objectionable.</p> <p>2. Practice — Evidence—Objection.</p> <p>An objection to the admission of evidence without assigning any reason for the objection does not entitle the party objecting to have the objection considered.</p> <p>S. Evidence.</p> <p>On an issue as to whether certain cement sold was of good quality, evidence of tests made with cement out of the same stock was admissible.</p>

<p> Appeal from the County Court of Custer County. </p>

<p>Office and Officees — Boabd of Public Wobks — Billing Vacancv.</p> <p>Sec. 33, art. 3 of the charter of the city of Denver (Sess. Laws, 1893, page Ifil) provides that the governor shall by and with the advice and consent of the senate appoint a board of public works, and that the governor shall have power to fill vacancies in vacation of the senate by appointment in writing filed with the secretary of the state. Held that under this section a vacancy in the board filled by the governor during the vacation of the senate is an appointment for the balance of the term, and that it is not necessary that the appointment should be confirmed by the senate when it meets before the term expires. Section 6, article 4 of the constitution, which authorizes the governor to fill vacancies in certain offices until the next meeting of the senate, does not apply to appointments to fill vacancies in the board of public works.</p>

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

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

<p>Appellate Practice — Abstract op Record.</p> <p>Rule 16 of the court of appeals requires the appellant or plaintiff in error to file with the clerk a printed abstract of the record which shall fully state the points from the record relied on for reversal. It is not enough to set forth in the abstract instructions refused without those given; and it is not enough to set forth both without the evidence. The court will not consider instructions refused unless the abstract also sets forth the instructions given and the evidence.</p>

In October, 1894, the Shutt Investment Company brought suit against the city of Pueblo to recover damages done to property fronting on Mechanic street. Mechanic street ran northeast and southwest and was intersected by C street which ran northwest and southeast, though in the statement the general direction of these streets will be treated as north and south and east and west.

<p> Error to the District Court of Pueblo County. </p>

This is a suit in equity. The record embraces separate appeals by different parties dissatisfied with the proceedings and their result. They have severally assigned errors upon the decree, and upon certain orders made by the court in the progress of the cause.

<p> Appeal from the District Court of Ouray County. </p>

<p>jError to the District Court of Las Animas County.</p>

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

<p>1. Appellate Practice — Evidence—Exceptions.</p> <p>Error cannot be predicated on the admission of evidence, over objection, unless an exception be taken to the ruling of the court admitting the evidence.</p> <p>2. Evidence.</p> <p>Evidence that the superintendent of a mining company had a miner, who was injured while working for the company, taken to a hospital and the next day called at the hospital and told the manager to take good care of him and it would be all right, was sufficient to justify a verdict against the company for services for nursing and caring for the injured miner.</p> <p>3. Principal and Agent — Presumption op Authority.</p> <p>A general superintendent-of a mining company, who has full charge of the business and property of the company, is presumed to have authority to bind the company for the expense of nursing and caring for a miner injured while in the employ of the company.</p>

<p> Appeal from the Coumty Court of Pueblo County. </p>

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

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

<p>1. Jurisdiction — Probate Courts.</p> <p>The county court sitting for the transaction of probate business is a court of limited jurisdiction, and has only such powers as are conferred by the constitution and the statutes, and such incidental powers as are necessary to the exercise of the jurisdiction conferred. It has no jurisdiction to determine a contest between an estate and a stranger as to the title to property.</p> <p>2. Corporations — Capital Stock. — Certificates.</p> <p>A share of stock is an undivided interest in the capital stock of a corporation, and is that which is subject to ownership. One share is identical and indistinguishable from any other share of the same series. The certificate is not the subject of ownership, but is simply the evidence of ownership. A bailee or pledgee of shares of stock in a corporation is not required to return the identical certificates, but may return certificates for an equal number of shares of the same series, and in an action to recover stock left with a trustee, it is not necessary that the identical certificates left be recovered.</p> <p>3. Trusts and Trustees.</p> <p>A trustee cannot by his own voluntary act change his capacity and convert himself into a mere debtor, nor could the death of the trustee effect the change. And where a decedent in his lifetime held certain shares of stock in trust for plaintiff, his death did not change that relation. Neither did the fact that the identical certificates, left with him, had been used for his own benefit, if he had other certificates of the same series against which the trust could be enforced.</p> <p>4. Trusts and Trustees — Limitation—Laches.</p> <p>Where a trust is established it continues, and the statute of limitations would not run against its enforcement, nor would the laches of the cestui que trust be chargeable to him until after the trustee had by some act disavowed the trust.</p>

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

<p> Appeal from the District Court of M Paso County. </p>

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

<p>1. Negotiable Instruments — Pleading—Acceptance—Damages.</p> <p>In an action on a dishonored draft against the drawees, where the complaint alleged a promise to pay by the drawees, it was not necessary to allege an acceptance or agreement to accept. A promise to pay was equivalent to acceptance, and in such case damages need not be alleged; the measure of damages is the amount of the draft and protest fees if any.</p> <p>2. Same — Pleading—Considebation—Holdeb fob Value.</p> <p>In an action on a dishonored draft against the drawees, if the drawer was authorized to draw the draft, or if the drawees promised to pay it, it was not necesssary to allege that plaintiff advanced any money to the drawer or that plaintiff was the holder for value; possession was prima facie evidence of the latter, and the draft itself, being negotiable commercial paper, imported.a consideration.</p> <p>3. Pbincipal and Agent — Authobity of Agent — Evidence.</p> <p>The authority of an agent to draw on his principal need not be shown by direct and positive proof of express authority, but may be established by circumstances. Agency, and the scope of the agent’s authority may be implied from transactions between the principal and agent, and from a course of dealing by the agent sanctioned by his principal.</p> <p>4. Same.</p> <p>Where an agent, a short time before drawing the draft in question, telegraphed his principals that he had drawn on them, giving amount of drafts, and they answered that they would pay the drafts, but in future they must be less, it was a recognition of the agent’s authority to draw in the future as well as the past, the only condition being that in future the amount must be less.</p> <p>5. Same.</p> <p>In an action on a dishonored draft against the drawees, evidence that the drawer was in the employ of the drawees; that they had furnished him with a book containing blank forms of drafts, with their firm name and address printed upon them; that the draft in dispute was written upon one of these blanks and that the drawees had previously honored and paid other drafts drawn upon them, in favor of the plaintiff, by the drawer, the evidence was sufficient to establish the authority of the agent to draw and the implied promise of the principals to pay.</p> <p>6. Pleading and Practice — Amendments.</p> <p>Amendments during the course of trial should be liberally allowed, for the furtherance of justice. Such amendments rest largely within the discretion of the trial court, and only an abuse of such discretion will be reviewed. To justify a reversal on this ground, there must be a plain and arbitrary abuse of discretion.</p>

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