Volume 14 — Colorado Court of Appeals Reports

<p>Mutual Benefit Insurance — Beneficiary—Divorced Wife.</p> <p>A mutual benefit insurance order provided in its by-laws that the beneficiary should be named in the beneficiary certificate, and should be confined to the family of the member or some person or persons related to him by blood or dependent upon him, and that under no circumstance should a certificate be issued to any other person, and provided further, that in case of death of all the beneficiaries named in the certificate before the death of the member, and his failure to name another, the benefit should be paid to the legal heirs of the member. A certificate was issued naming the member’s wife as the beneficiary, who, after the certificate was issued, procured a divorce, and the husband died without naming any other beneficiary. Held, that the procuring of the divorce was not the legal equivalent of the death of the beneficiary so as to vest in the heirs of deceased any right to the fund.</p>

J. J. Riethmann and J. J. Riethmann & Company, both the individual and the firm, made assignments for the benefit of creditors prior to January, 1895. At the time of the assignment the individual and the firm were indebted to various parties and had executed commercial paper to represent the debts.

<p>1. Mortgages — Injury to Mortgaged Property.</p> <p>An action may be maintained by a mortgagee or beneficiary in a deed of trust for an injury done to tbe security.</p> <p>2. Mortgages— Fixtures — Chattel Mortgages.</p> <p>Where real estate was purchased for the purpose of manufacturing brick and a deed of trust was given by the purchasers to secure the purchase price, and the purchasers afterwards placed upon the land heavy machinery fastened to a brick foundation sunk in the ground, inclosed by brick sheds to he permanently used in connection with the land in the manufacturing of brick, held that the machinery became a part of the real estate and subject to the deed of trust and that a chattel mortgage on the machinery executed after it was attached to the real estate, conveyed no right to the machinery as against the beneficiary in the trust deed.</p> <p>3. Same— Yerbal Offer to give Chattel Mortgage.</p> <p>A verbal offer of a mortgagor to give a chattel mortgage on certain machinery to be attached as fixtures to the mortgaged premises which was not accepted until after the machinery was attached and became a part of the real estate vested no right to the machinery in the chattel mortgagee as against the beneficiary in the real estate mortgage or deed of trust.</p> <p>4 Deed of Trust — Power of Trustee — Estoppel.</p> <p>The trustee in a deed of trust has no power to make any contract in relation to the property outside of the power given him in the deed, and an agreement or promise by him to the holder of a chattel mortgage on certain machinery attached to the real estate, that the cestui que trust would not contest the validity of the chattel mortgage would not be binding on the cestui que trust nor estop him from afterwards setting up his superior rights or from suing for damage to the real estate by a foreclosure of the chattel mortgage and removal of the machinery.</p>

<p>1. Contracts — Mortgages—Pleading.</p> <p>Where there was a first and second mortgage on a piece of property and the mortgagor abandoned it and the second mortgagee proposed that if the first mortgagee would forbear a foreclosure he would take charge of the property and after paying the expense of collection, the taxes and repairs, would pay to the first mortgagee the rents, which was consented to by the first mortgagee but no definite time was fixed during which the foreclosure should be forborne, and the second mortgagee took possession, collected the rents and paid a part of the rents to the first mortgagee and the first mortgagee forbore his foreclosure for nearly two years, he had a right of action for the balance of the rents collected above the expense of collecting, etc., and not paid over, and a complaint that alleges the above facts states a good cause of action.</p>

<p>Appellate Practice — Findings op Fact — Contract.</p> <p>The findings of fact of the trial court based upon conflicting evidence will not be disturbed on appeal unless manifestly against the weight of the evidence, and this rule applies even though there was a contract to be construed where the contract was so indefinite as to admit parol evidence to explain it, and where the controlling question was the matter of fact as to whether the contract had been complied with.</p>

<p>1. Appellate Pbactice — Appeal Bond.</p> <p>On appeal from a judgment in the county court in a case that originated before a police magistrate, the sufficiency of the appeal bond filed with the police magistrate cannot be raised in the court of appeals if it was not questioned in the county court.</p> <p>2. Cities and Towns — Obdinances—License.</p> <p>An ordinance of a town that requires the payment of a license fee by persons who engage in or carry on the business of expressman, cabman, drayman or public carrier, is not violated by one who without a license under a special contract does certain specified hauling within the town but who does not offer his services to, nor invite employment from the public. Doing certain specified work under a special contract is not engaging in or carrying on a business within the meaning of the ordinance.</p>

<p>1. Appellate Practice — Abstract of Record.</p> <p>Where the printed abstract of record contains nothing from which the court can determine whether or not evidence was improperly rejected, the court will not resort to the record on behalf of the party who prepared the abstract to determine an assignment of error based on that ground.</p> <p>2. Principal and Agent — Commissions—Instruction.</p> <p>In an action for commission as agent, an instruction to the effect that, where a principal employs several agents to sell a piece of property the agent through whose efforts the purchaser is produced is alone entitled to commission, is erroneous where there is no evidence that any other agent than plaintiffs had been employed or that the property had been placed in any other hands for sale.</p> <p>3. Same — Introduction of Purchaser to Seller.</p> <p>. Where an agent produces a customer and is the procuring cause of a sale he is entitled to his commission notwithstanding he may not have formally introduced the purchaser to his principal, and an instruction which tells the jury that in order to recover a commission the agent must have introduced the purchaser is erroneous.</p> <p>4. Principal and Agent — Commission—Subagent.</p> <p>Where agents authorized by the owner to sell property are instrumental through an employee of a subagent in producing a purchaser, and the principal completed the sale with knowledge of their claims, they are entitled to recover their commission notwithstanding the principal had already paid a commission to the party who actually introduced the purchaser.</p>

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

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

While this suit is nominally a proceeding by way of mandamus to compel the state land board to issue a lease to the Colorado Fuel & Iron Company for coal mining purposes on certain lands belonging to the state, we are quite well able to see from the record that it is in reality and in substance a controversy between the Colorado Fuel & Iron Company under their claim of right to this lease as against the Victor Coal & Coke Company, which holds a lease from the state issued by…

<p>1. Appellate Practice — Former Appeal — Res Judicata.</p> <p>On a second appeal the decision in the former appeal is the law of the case only as to questions considered on the former appeal. Although the questions raised on the second appeal might have been presented on the former hearing, if it plainly appears they were not raised or discussed, the court is not precluded by the former decision from an examination of such questions.</p> <p>2. Mechanics’ Liens — Assignment op Claim and Lien.</p> <p>Under the mechanic’s lien acts of 1883 and 1889 the claim and the lien are assignable either before or after the filing of the statement, and the assignee has the same rights and remedies as the assignor had. A general assignment for the benefit of creditors by a lienor is sufficient to transfer to the assignee a claim and lien right under the mechanic’s lien statutes.</p> <p>3. Mechanics’ Liens — Filing of Statement.</p> <p>Where material was furnished for the building of-three houses and was used indiscriminately in three buildings, and the houses were built crosswise on four platted lots so that each'house occupied part of the four lots without any segregation or division of the lots or description of the land on which the different houses were built, the material man was not required at his peril to subdivide his claim and assign to each house as built the proportion of the debt which it ought in equity to bear, but might file his entire claim on all the houses and lots as one claim.</p> <p>4. Mechanics’ Liens — Statement— Ownership.</p> <p>Under the mechanic’s lien statutes the statement filed must correctly state the name of the owner and must contain in the body of the instrument a direct averment of ownership. It is. not enough that the name of the owner appear in the title or address affixed to the paper.</p> <p>5. Same.</p> <p>The owner to be designated in a mechanic’s lien statement is the owner and holder of the legal title at the time the lien is filed.</p> <p>6. Same.</p> <p>A mechanic’s lien statement that designates as owner the holder of an equitable title instead of the owner of the legal title, although good as against the equitable owner, as against subsequent incumbrancers and lienors it is defective and invalid.</p> <p>7. Pbaotice — Equitable Pboobedings — Reopening Case — Notice.</p> <p>In equitable proceedings the court may upon its own motion or upon motion of counsel, after final submission and before entry on the decree, reopen the case for the purpose of hearing testimony on any proposition essential to the determination of the suit or any collateral question involved in the decree, but when this is done it must always be done on notice to all parties whose rights may be affected.</p>

<p>Negligence — Damage—Act of God.</p> <p>The owner of an irrigating ditch is not liable for damage caused by an overflow of the ditch, where the proximate cause of the overflow was an unprecedented storm such as had never been known in the vicinity, and where the owner’s negligence in no way concurred in or contributed to the cause of the injury.</p>

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

<p>1. Practice — Pleading—Amendment—Harmless Error.</p> <p>The denial of a motion for leave to amend an answer is not reversible error where no proof offered was rejected on account of the absence from the answer of the allegation proposed by the amendment and where defendant suffered no injury by reason of the denial of the motion even though it was erroneous.</p> <p>2. Damage — Personal Injury — Res Judicata — Wife’s Recovery no Bar to Action by Husband.</p> <p>Where a wife sued and recovered damages for injuries caused by the negligence of a street railway company wherein her complaint alleged a permanent disability, and that since the injury she had been unable to perform any labor, and that she had expended large sums of money for medicine in attempting a cure of her injuries, but no special damage was alleged on account of loss of labor, and no specific amount of money was alleged as having been expended, held that the allegations of inability to perform labor and of the expenditure of money were allegations of matters of aggravation that went to show the severity of the injury and were not of themselves allegations of causes of action, such as would make the action by the wife res judicata of any part of an action subsequently brought by the husband for loss of services, companionship and society of his wife and for money expended on account of the same injury.</p> <p>3. Appellate Practice — Abstract of the Record.</p> <p>The appellate court will confine its investigation on behalf of the appellant or plaintiff in error to what he has seen fit to bring to the attention of the court in his printed abstract of the record.</p> <p>4. Damage — Suit by Husband for Injuries to Wife — Evidence.</p> <p>In an action by a husband for damages, in the loss of services, companionship and society of his wife and for money expended in her care caused by injury to the wife by the negligence of a street railway company it was proper to refuse to admit in evidence the record of an action by the wife for the same injuries where the action by the wife involved none of the elements of damage sued for by the husband.</p> <p>5. Same.</p> <p>Evidence that a husband assisted his wife in conducting a suit against a street railway for injuries caused by the negligence of the'company and that the wife turned over the money recovered to her husband, was not competent on behalf of the defendant in a subsequent action by the husband for damages for loss of services, companionship and society of his wife and for money expended in her care on account of the same injury. Where there was no other proof that the two actions were for the same damages such evidence was totally irrelevant to the issues.</p> <p>6. Damage — Loss op Companionship, Society and Sebvices op Wipe — Evidence.</p> <p>In an action by a husband for damages for the loss of companionship, society and services of his wife on account of injuries caused by the negligence of a street railway company, the damages are not susceptible of proof by witnesses, and the amount of the compensation which the husband is entitled to recover is to be determined by the jury from their own observation, experience and knowledge, conscientiously applied to the facts and circumstances of the case.</p> <p>7. Damage — Action by Husband pob Injubies to Wipe — Instructions.</p> <p>In an action by a husband for damages on account of injuries to his wife, an instruction to the effect that if the evidence authorized a recovery, the plaintiff was entitled to compensation for expenses already incurred in endeavoring to effect a cure, as well as future expense to the same end as the jury might estimate it, and also for the loss past, present and prospective, of the society of his wife caused by her injuries, defining the relation which she sustained to him and the manner in which the damages should be found or estimated, was a proper instruction.</p>

<p>1. Railroads — Negligence—Killing Stock — Pleading.</p> <p>Session Laws, 1893, p. 406, providing that the killing or injury of an animal by a railroad company or corporation being shown by competent evidence shall be prima facie proof of negligence of the company or corporation, does not relieve a plaintiff in an action against a railroad company for damage for the killing of an animal from alleging negligence of the company in his complaint. A complaint in such action that does not either allege directly the negligence of the company, or facts from which negligence may he inferred, is insufficient to state a cause of action.</p> <p>2. Railroads — Negligence—Killing Stock — Evidence.</p> <p>In an action against a railroad company for negligently killing an animal, where the allegation that defendant operated the road upon which the animal was killed was denied, it was incumbent on plaintiff to offer some evidence to prove the allegation, and, in the absence of any proof that the defendant did operate the road, it was error to refuse defendant’s motion for nonsuit.</p> <p>3. Same.</p> <p>In an action against a railroad company for killing or injuring an animal, the mere finding of an animal dead or injured near the railroad track is not sufficient proof that it was killed or injured by the railroad company, but it is not necessary to prove such killing or injury by eye witnesses — it may be shown by circumstantial evidence.</p> <p>4. Same — Proof of Value.</p> <p>In an action against a railroad company for negligently killing an animal, plaintiff’s neighbors, who were farmers and owners of similar animals and used them and sometimes bought and sold them, were competent witnesses as to the value of the animal, although they testified that they did not know the “ market value ” of the animal in that vicinity, and did not know that there was any “ market value” for such animals.</p>

<p>1. Cities and Towns — Appointment and Removal of Officers.</p> <p>Under the charter and ordinances of the city of Denver the city treasurer has no authority to appoint or remove a license inspector, but that power is vested only in the city council.</p> <p>2. Officebs and Offices — Removal—Mandamus.</p> <p>Where a city treasurer attempted to remove a license inspector from office and the treasurer had no authority or power to appoint or remove such inspector, it was not incumbent on the inspector to mandamus the treasurer to compel his reinstatement but he might oontinue to do the work of his office or offer to do it and sue for his salary.</p>

<p>1. Chattel Mortgages — Insecurity Clause — Foreclosure—Evidence.</p> <p>Where a chattel mortgage contains a clause to the effect that, if at anytime the mortgagee feels insecure or unsafe in his security, he may take immediate possession and proceed to sell the property, the mortgagee has the right to determine for himself whether he is unsafe, but his judgment must be exercised in good faith and upon reasonable grounds or probable cause. To justify a seizure and sale under such clause, the mortgagee need not prove that there was actual danger, but he must show that there was apparent danger, or that he had good reason to believe there was danger that his security was becoming unsafe.</p> <p>2. Practice — Motion eor New Trial — Excessive Damage — Remittitur — Harmless Error. •</p> <p>On motion for a new trial on the ground that the verdict was excessive, where the court required the plaintiff to remit part of the amount, if error, it was an error against the plaintiff and could not prejudice the defendant and is no ground for reversal on defendant’s appeal.</p> <p>3. Practice — Evidence—Error Cubed.</p> <p>Error in striking out evidence is cured by afterwards permitting the witness to testify to the facts attempted to be reached by the evidence stricken out.</p> <p>4. Practice — Evidence—Proof of Value — Harmless Error.</p> <p>On appeal from a judgment for damages in favor of a mortgagor against a mortgagee in a chattel mortgage for wrongfully taking and selling the mortgaged property, error in permitting the plaintiff to testify to the value of the property, without having first qualified himself to testify to the value, is not prejudicial error where the answer of the defendant admitted the taking of the property and that it was sold for more than the amount of the judgment.</p>

<p>1. Practice — Trial—Objections.</p> <p>Where on appeal it does not appear that appellant objected in the trial court to the manner of trial or to the method adopted to ascertain the facts, such objections cannot be raised in the appellate court.</p> <p>2. Appellate Practice — Abstract of Record.</p> <p>The appellate court will confine its investigation on behalf of the appellant or plaintiff in error to the abstract of the record furnished by him.</p> <p>3. Appellate Pbactice — Assignments op Ebbob — Evidence.</p> <p>Assignments of error that merely state that “ the court erred at the trial . in receiving incompetent testimony over the objection and exception of appellant,” and “ the court erred in rejecting competent evidence in the case, offered by appellant,” are not sufficiently specific to raise such questions on appeal.</p> <p>4. Appellate Practice — Pbesumption.</p> <p>Where on appeal the abstract shows that a judgment was rendered but fails to show the proceedings of the trial court, it will be presumed that the proceedings were correct and the judgment will be affirmed.</p>

<p>1. Replevin — Jurisdiction of Justice of the Peace.</p> <p>In replevin the jurisdiction of a justice of the peace is coextensive with his county.</p> <p>2. Replevin — Affidavit—Principal and Agent.</p> <p>In a replevin suit it is not necessary that the affidavit he made in person hy the plaintiff but may be made by his attorney or agent.</p> <p>3. Appellate Practice — Presumption—Affidavit in Replevin.</p> <p>On appeal from a judgment in replevin if the abstract does not contain the affidavit it will be presumed that it was made by a person qualified to make it.</p> <p>4. Replevin — Jurisdiction of Justice of the Peace — Affidavit.</p> <p>In order that a justice of the peace may have jurisdiction to issue a writ of replevin the value of the property claimed must not exceed $300, and the affidavit must show its real value, but it is sufficient if it state the aggregate value.</p> <p>5. Replevin — Evidence—Agreement—Consideration.</p> <p>In an action of replevin where plaintiff claimed title under a chattel mortgage, it was not error to refuse to admit in evidence proof that part of the property had been seized by other parties under some claim of lien, that plaintiff brought suit for its recovery, and that he promised to relinquish his claim upon the remainder in consideration of an agreement by defendant to pay a part of the expense of litigation of that suit, where it does not appear that defendant performed any part of his agreement.</p>

<p>1. Principal and Agent — Liability of Customer to Broker for Failure to Deliver Stock Sold.</p> <p>Where a party employs a broker to sell stock and after the broker sells refuses to deliver the stock, he is liable to the broker for bis loss in purchasing the stock in the market to fill the contract of sale in addition to the broker’s commission for making the sale.</p> <p>2. Principal and Agent — Sales—Delivery.</p> <p>The principle that the seller of personal property is not bound to deliver the property till paid the price, does not apply as between a seller of stock and his broker employed to make the sale.</p> <p>3. Practice — Instructions.</p> <p>One cannot object on appeal to a failure of the trial court to submit an issue to the jury where he asks for no instruction on the issue and makes no definite objections to the instructions as given, nor indicates to the court the proposition on which he relies.</p>

<p>1. Limitation — Suit against Sheriff foe Conversion of Funds.</p> <p>Where a sheriff converted to his own use money received from the sale of property under a writ of attachment, limitation would not begin to run against an action by the attachment plaintiff on the official bond of the sheriff to recover the money converted until final judgment was entered in the attachment suit in favor of plaintiff, both as to the attachment defendant and an intervener claiming the property.</p> <p>2. Sheriffs — Liability of Sureties — Conversion of Funds.</p> <p>Where money came into the hands of a sheriff by sale of perishable property under a writ of attachment and pending the litigation in the attachment suit but after the sale of the property, the sheriff’s term of office expired and he was re-elected and gave a new official bond and when the attachment suit was ended the sheriff defaulted in the payment of the attachment fund, the sureties on his official bond at the time of the execution of the writ and sale of the property were liable for his default.</p>

<p>1. Chattel Mortgage — Effect of New Mortgage.</p> <p>Where a debt- is secured by a chattel mortgage the taking of a new note and new chattel mortgage to secure it, does not of itself and necessarily extinguish the old debt or the first chattel mortgage.</p> <p>2. Same.</p> <p>Where a chattel mortgage being about to become due the mortgagor executed new notes and a new chattel mortgage on same property without any release or agreement to release the old mortgage, but the attorney for the mortgagees delivered the old mortgage to the mortgagor and before the new mortgage was placed on record an execution was levied upon the property, whereupon the old chattel mortgage was returned by the mortgagor to the mortgagees, held, that the first chattel mortgage was not released and that the mortgagees were entitled to possession of the property as against the sheriff under the execution.</p>

<p>1. Practice — Claims Against County — Presentation to Board.</p> <p>In an action against the board of oounty commissioners on a claim against the county, it must be alleged and proven that the claim was presented to the board of county commissioners for audit and allowance and was rejected, or that a reasonable time has elapsed since its presentation and the hoard has failed or refused to act on the same.</p> <p>2. Elections — Publication oe List oe Nominations — Evidence —Value oe Publication.</p> <p>In an action against a board of county commissioners by a publisher of a newspaper for the value of space and work in publishing a list of nominations for office, testimony that the amount sued for was the customary and reasonable charge for that sort of work in the state is not sufficient proof of the value ; the proof must be as to the value of the space and the work in the particular paper in which it was published.</p> <p>3. Same.</p> <p>In an action to recover for publishing a list of nominations for office, where the plaintiff testified as to the value of the publication, it was error to refuse to permit the defendant’s counsel to cross-examine Mm as to the cost and value of labor and material which, went into the publication, and also with reference to sale of space in the same paper at other times and for other purposes.</p>

<p>1. Practice — Instructions.</p> <p>It is improper to give an instruction announcing a naked legal proposition, however correct it may be, unless it bears upon the issues involved and unless there has been received some evidence to which the jury may apply it.</p> <p>2. Appellate Practice — Abstract of Record.</p> <p>An appellate court will not examine the bill of exceptions to determine whether the evidence was such as to make an instruction asked by plaintiff and refused by the court applicable. If parties assign errors on any question which necessitates an examination of the evidence, they must put into the abstract the evidence necessary to be examined to determine the question.</p> <p>3. Appellate Practice — Presumptions.</p> <p>On appeal the presumption is always in favor of the regularity of the proceedings in a court of record, and that the verdict and judgment were correct and based upon proper evidence, until the contrary is shown.</p> <p>A Instructions.</p> <p>It is not error to refuse an instruction asked where the instructions given substantially state the rule laid down in the instruction asked.</p> <p>5. Practice — Evidence—Fraudulent Conveyance.</p> <p>Where a husband gave his note in settlement of a book account, and afterwards the wife gave her note for the husband’s, in an action against the husband and wife on the original book account where the only issues were whether or not the note of the husband was given in payment of the book account and whether or not the wife’s note was given as collateral security, evidence as to fraudulent conveyance of property between the husband and wife was not admissible.</p> <p>6. Evidence — Impeaching Witness — Immaterial Testimony.</p> <p>A witness may not be impeached by showing that he testified falsely, where the testimony claimed to be false was immaterial to the issue, although the immaterial testimony was admitted in evidence without objection.</p>

<p>1. Appellate Practice — Abstbact op Recobd — Presumption.</p> <p>Where the abstract contains nothing to show that there was error in rendering a decree, the correctness of the decree will be presumed.</p> <p>2. Practice — Receivers—.Judgment—Haemless Ebbob.</p> <p>In an action wherein a receiver was appointed for defendant, after decree for plaintiff the receiver was discharged and ordered to hie his report which was objected to, which objections being overruled judgment was entered in favor of the receiver against the defendant for the amount of his expenses. Held irregular to enter judgment in favor of the receiver as he was not a party to the suit, and that the amount allowed the receiver should have been taxed as costs in the main suit, but as the costs in the main suit were taxed against defendant the result was the same and the error harmless.</p> <p>3. Pbactice — Evidence.</p> <p>On the hearing of objections to a receiver’s report after decree in the main case it was proper to reject evidence offered which would have been admissible on the hearing in the main case, but was irrelevant to any issue arising on the report.</p> <p>4. Pbactice — Compensation and Expenses op Receivebs.</p> <p>Where in an action in which a receiver was appointed for defendant, a decree was rendered in favor of plaintiff with a judgment against defendant and in favor of the receiver for costs and the expenses of the receivership, and the judgment for the receiver’s expenses included items with which defendant was not chargeable, the decree in the main case may be affirmed and the cause remanded with directions to the lower court to vacate the judgment in favor of the receiver, and to ascertain the proper amount due the receiver and tax the same as costs in the main case.</p>

<p>Sales — Delivery—Evidence—Practice.</p> <p>Iii an action for the value of hay cut by plaintiffs for defendants and stacked on defendants’ premises and which was destroyed by fire before it was measured to determine the amount on which to compute the purchase price, where the issue was as to whether the delivery was complete before the measurement, or whether the measurement was a condition precedent to delivery, and the evidence as to when and how the measurement was to be made was conflicting and was submitted to the jury under proper instructions, the verdict of the jury in favor of plaintiffs will not be disturbed.</p>

<p>1. Fraudulent Conveyance — Evidence.</p> <p>Where the evidence of the parties to a trust deed from a husband to his wife and its transfer to a brother of the husband was confused, evasive and contradictory as to the consideration and a subsequent mortgagee testified that at the time of the execution of his subsequent mortgage the parties to the former trust deed told him it was executed only for the purpose of protecting the husband from his creditors and that it had been released by an unrecorded deed, a finding of the trial court that the trust deed was voluntary and as to the subsequent purchaser fraudulent and void, will not be disturbed.</p> <p>2. Evidence — Exclusion of Witness from Court Room. '</p> <p>Where a witness disobeys the rule excluding witnesses from the court room during the trial, with the knowledge and consent of the party seeking to introduce such witness, the court may in its discretion refuse to permit such witness to testify in the case.</p>

<p>1. Public Schools — Teachers’ Certificates — Contracts.</p> <p>The only condition precedent to the employment of a teacher in the public schools as fixed by the statutes is that such teacher shall have a certificate from the county superintendent of schools in full force at the date.of employment.</p> <p>2. Same — Examinations.</p> <p>While the statute makes it the duty of the county superintendent of public schools to examine applicants for certificates to teach, upon questions formulated by the state superintendent, a certificate issued without such examination is not for that reason void, and the fact that a certificate was issued without an examination cannot be pleaded in defense of an action by a teacher for wages.</p> <p>3. Public Schools — Teachers’ Certificates — Practice.</p> <p>In an action by a teacher for wages under a contract, a teacher’s certificate from a county superintendent cannot be collaterally attacked except for fraud.</p> <p>4. Same.</p> <p>In an action by a teacher for wages, an allegation in the answer that the teacher did not have a first-class certificate stated no defense. If the plaintiff holds a certificate of qualification to teach, a contract of employment is valid. The class of the certificate is immaterial.</p> <p>5. Public Schools — Dismissal of Teacher — Suit for Wages.</p> <p>In an action by a teacher for wages under a contract to teach in the public schools an answer to the effect, that shortly after plaintiff’s employment the board of directors was advised of her incompetency and incapacity to teach and determined to discharge her but fearing to do her any injustice, sent for the county superintendent of schools, who upon careful examination concurred with the board that she was incompetent and incapable, and that thereupon the board in the exercise of its best judgment and discretion dispensed with the services of plaintiff, states no defense and was properly stricken out.</p> <p>6. Public Schools — School Board — Contracts.</p> <p>Under the statute authorizing the school board to employ teachers, it is not necessary to the validity of a contract with a teacher that it be made at a formal meeting of the board. A contract agreed to by the several members of the board and executed and signed by them is binding, although not done at a regularly convened meeting of the board.</p> <p>7. Same — Ratification.</p> <p>Where a school board entered into a contract with a teacher and for ten weeks accepted her services and paid her wages, it was a ratification of the contract and the board was estopped from asserting the invalidity of the contract.</p> <p>8. Public Schools — School Board — Contract.</p> <p>A contract with a teacher to teach in the public schools signed by two of the three members of the school board is valid without the signature of the third member, as the majority of the board have power to contract.</p> <p>9. Practice — Pleading—Statutory Construction.</p> <p>Section 432 of the code, providing that if an application for an order made to a judge of a court in which the action or proceeding is pending be refused, no subsequent application for the same order shall be made to any other judge, has no application where a motion was made to strike out certain clauses of an answer and denied, and afterwards a motion was made before another judge to strike out the same clauses as amended. The provisions of the code apply only to applications to judges, while the motions striking at the pleadings are applications to the court.</p>

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

<p>1. Mandamus — Executive Depabtment.</p> <p>Mandamus will lie against a member of tbe executive department of the state to compel the performance of an act purely ministerial and which involves no exercise of judicial discretion.</p> <p>2. Pbactice — Judgment on the Pleadings.</p> <p>On a motion for judgment on the pleading the general rule is that all the material allegations must be taken as time.</p> <p>3. Mandamus — Pleading.</p> <p>In an application for mandamus to compel the state auditor to issue a warrant for services of an officer of the senate, it is not necessary to allege that the money is in the treasury against which the warrant can be drawn, but the warrant may be drawn in anticipation of the revenue.</p> <p>4. Mandamus — Legislative Opeiceb — Cebtificate of Pbesiding Officeb.</p> <p>A certificate of the presiding officer of either house of the general assembly as to the election and services of any officer or employee of such house is conclusive upon the state auditor, and he has no authority to go behind such certificate to inquire whether such officer was elected or whether he performed the services. His duty to issue a warrant for the salary of such officer as fixed by statute upon the presentation of such certificate is ministerial, and mandamus will lie to compel the issuance of the warrant.</p>

<p>1. Mechanics’ Liens — Mining Claim — Lessor and Lessee.</p> <p>A complaint that alleges employment by and services performed for a lessee of a mining claim states no cause of action against the lessor or owner either for a personal judgment or for the enforcement of a mechanic’s lien against the mine.</p> <p>2. Appellate Peactice — Complaint Insufficient to state Cause op Action.</p> <p>Where a complaint stated no cause of action against appellant and the irregularity is challenged by an assignment of error, the appellant is entitled to be heard regardless of errors in the prosecution of proceedings to set aside the judgment.</p> <p>3-. Same.</p> <p>Where the pleading and proof are wholly insufficient to support a judgment, the judgment cannot stand whatever errors or irregularities •may have otherwise been committed.</p> <p>4. Peactice — Clebks of Coubt — Deposit of Costs.</p> <p>Where a defendant had on deposit with the clerk cost money at the time a judgment was rendered against her the clerk had no right to refuse to file a motion for new trial on the ground that the cost money deposited by defendant belonged to plaintiff because he had ob-. tained judgment. The clerk has no authority to apply money deposited for costs towards the payment of a judgment except upon an execution or order of the court.</p>

<p>1. Appellate Practice — Abstract op Record.</p> <p>Where an action was brought upon numerous assigned claims and the complaint contained as many causes of action and the allegations of the different causes of action were exactly the same except as to amounts and names of assignors, on appeal it was not necessary to print the entire complaint in the abstract in order to raise the question that it did not state a cause of action, but it was sufficient to print one cause of action in full in the abstract and state that the other causes were the same except as to amounts and names.</p> <p>2. Mechanics’ Liens — Minins Claims — Lessor and Lessee.</p> <p>A person who works on a mine under employment by a lessee of the mine is not by reason of such employment entitled to a mechanic’s lien On the mine as against the owner. In order to enforce a lien against the owner there must be a showing that the owner is in some way obligated, either as privy and party to the contract of employment, or that he had authorized the lessee to contract the employment in his behalf.</p>

<p>1. Bills and Notes — Indoesement—Joint Makeb.</p> <p>Where a third person writes his name upon the back of a note before delivery to the payee and there is nothing to indicate the intention of the parties, prima facie, he is chargeable as a.joint maker, and without reference to the time when he put his name upon the note, if he participated in the consideration for which it was given, he must be considered an original promisor.</p> <p>2. Same — Pleading—Inconsistent Defense.</p> <p>In an action against one who wrote his name on the back of a note wherein it is sought to charge him as a joint maker, an answer that alleges that defendant was induced to indorse the note by false representations of plaintiff to the effect that the principal maker of the note as plaintiff's treasurer bad defaulted, and was indebted to plaintiff and that defendant was liable as surety on his official bond and that the indorsement was made as collateral security to secure the amount of the indebtedness when determined, is inconsistent with and contradictory of any theory that defendant signed the note as an indorser and not as a joint maker.</p> <p>3. Bills and Notes — False Repbesentations.</p> <p>In an action against a joint maker of a promissory note, an answer that defendant’s signature was obtained by a false representation by plaintiff that the principal maker for whom defendant was surety was indebted to plaintiff, which representation was false, that said principal maker was not indebted to plaintiff, states a good defense to the action.</p> <p>4. Same.</p> <p>In an action against a joint maker of a note, an answer that defendant’s signature was obtained by a false representation by plaintiff that a bond signed by defendant was valid and defendant was legally liable thereon when in fact the bond was void states no defense to the action, as the representation as to the validity of the bond and defendant’s liability thereon, was only an expression of opinion on a question of law and not a representation of fact that would constitute fraud if untrue.</p> <p>5. Bonds — Refobmation.</p> <p>An indemnity bond by the treasurer of a society made payable to the people instead of to the society is not void on that account but may be reformed by making it payable to the proper payee in accordance with the intentions of the parties.</p>

<p>1. Trusts and Trustees — Escrow—Liability of Trustee.</p> <p>Where a grantor and grantee deposited with a bank in escrow a deed to a certain lot together with a check of the vendee payable to the bank drawn on a distant bank with an agreement that the escrow bank was to deliver the deed to the vendee upon the collection of the check and a deposit by the vendee of certain capital stock in a mining company, and the check when collected was to be placed to the credit of the vendor, and the bank sent on the check for collection which was paid by a return of a draft of the payee bank on a Chicago bank, and after receiving the Chicago draft the escrow bank received a request from the vendee to return his check if not collected, for the reason that he was not satisfied with the title, and the bank on which his check was made also requested a return of the Chicago draft which was returned, in an action by the vendor against the escrow bank for the amount of the check, held that the defendant was the trustee for the vendor to collect the check, and that the receipt of the Chicago draft in payment of the check was a collection of the check, and it was defendant’s duty to convert the draft into money and place the same to the vendor’s credit, and for its failure to do so, and for its wrongful return of the draft it was liable to plaintiff for the amount of the cheek with interest.</p> <p>2. Stoppage in Transitu — Negotiable Paper.</p> <p>The vendor of negotiable paper has a right of stoppage in transitu in case of the intervening insolvency of the vendee, but he must exercise the right before the paper comes to the Vendee’s possession.</p> <p>3. Escrow — Estoppel.</p> <p>Where a deed was deposited in escrow with a bank together with the check of the vendee, with instructions to deliver the deed to the vendee upon collection of the check and to place the proceeds of the check to the credit of the vendor, and the check was paid by a bank draft and the escrow bank voluntarily returned the draft, in an action by the vendor against the escrow bank for the amount of the check, the defendant is estopped to say that it did not receive the money on the check when by its own voluntary act it put it out of its power to receive it.</p>

<p>1. Evidence — Parol—Record.</p> <p>Parol evidence as to the time a suit was commenced is incompetent as it is a matter of record and the record is the best evidence.</p> <p>2. Fraudulent Conveyance — Creditors’ Bill — Pleading and Proof — Insolvency.</p> <p>In order to maintain a creditors’ bill, to subject land purchased in the name of the wife with money furnished by the husband, to the payment of a judgm^t against the husband, it is necessary to allege and prove that at the time the husband gave the money to his wife he was insolvent or that the gift tended to render him insolvent and unable to pay his debts,</p> <p>3. Same — Limitation.</p> <p>Bills for relief on the ground of fraud must be filed within three years from the date of discovery. A bill that shows that the fraud was committed more than three years before the filing of the bill must allege not only the time when the fraud was discovered, but the facts constituting the fraud and the circumstances under which it was ascertained.</p> <p>4. Same — Laches.</p> <p>Where the plaintiff in an action delayed the suit ten years from the' time of its beginning before taking final judgment and thereafter delayed a suit to subject land purchased with money of the judgment debtor in the name of his wife until after the death of the judgment debtor, he was guilty of such laches as will preclude him from maintaining a creditor’s bill to subject the wife’s land to the judgment.</p> <p>5. Husband and Wife — Fraudulent Conveyance.</p> <p>If at the time of a gift by a husband to his wife the husband retains ample means to satisfy all his existing debts the wife’s property may not afterwards be subjected to the husband’s debts on account of the gift.</p>

<p>1. Champerty and Maintenance.</p> <p>The common-law offenses of champerty and maintenance, do not exist in Colorado.</p> <p>2. Same — Statutory Construction.</p> <p>The gist of the offense of maintenance, as defined in section 1299, Mills’ Ann. Stats., is the intent and purpose with which the act is done. To constitute the offense the act must be done witlra view to promote litigation and is confined to cases where a person for the purpose of fomenting and stirring up strife and litigation encourages others either to bring actions or to make defenses which they have no right to make, or otherwise would not make.</p> <p>3. Contracts — Public Policy — Malum Prohibitum and Malum in SE.</p> <p>A contract to do a thing prohibited by statute and for the doing of which a penalty is provided is not necessarily void, but if the thing prohibited is malum in se the contract will not be enforced, not because of the statutory prohibition, but because of its being against public policy and good morals.</p> <p>4 Contbacts — Maintenance—Public Policy.</p> <p>A contract whereby a person agrees to employ counsel, pay costs and prosecute a suit for others for a part of and an interest in the subject-matter of the suit, which shows upon its face that the purpose is to aid a legitimate suit to be prosecuted in good faith, not "for the purpose of stirring up and encouraging strife, but for the legitimate purpose of enforcing rights, is not void as in contravention of our statute against maintenance, nor is it contrary to public policy and good morals.</p> <p>5. Contbacts — Public Policy.</p> <p>Before a contract can be declared void as against public policy, it must clearly appear that it is obnoxious to the pure administration of justice and manifestly injurious to the interests of the public.</p> <p>6. Same — Evidence.</p> <p>A contract to furnish record evidence in the possession of the contractor, and which is necessary to establish the rights of a litigant, for a part of the subject-matter of the litigation is not void as contrary to public policy.</p> <p>7. Same.</p> <p>A contract to furnish testimony requisite to win a suit, being a strong inducement to commit perjury, is void as against public policy, but a contract to furnish evidence already in existence and in the possession of the contractor is not contrary to public policy although the evidence was necessary and sufficient to establish the rights of the litigant.</p>

<p>1. Malicious Prosecution — Probable Cause — Malice.</p> <p>In an action for malicious prosecution the burden is upon the plaintiff to show, both, that there was not probable cause for the prosecution and that it was instituted through malice.</p> <p>2. Same — Evidence—Presumption.</p> <p>In an action for malicious prosecution malice may be inferred from want of probable cause but it is not a legal presumption. Where want of probable cause is shown it is for the jury to say from the facts proved whether or not the prosecution was instigated by malice.</p> <p>3. Same — Evidence.</p> <p>In an action for malicious prosecution any facts tending to prove malice are admissible on behalf of plaintiffs and any facts tending to disprove malice are admissible for the defendant, but where the facts establish probable cause for the prosecution it is a complete defense and malice is immaterial and it is not error to reject evidence tending to disprove malice.</p> <p>4. Same.</p> <p>In an action for malicious prosecution the advice of a justice of the peace given upon a full statement of the facts by defendant is admissible as a part of the res gestee as bearing upon the prosecutor’s good faith, though it may not, like the advice of counsel, be a complete defense.</p> <p>5. Malicious Prosecution — Evidence—Intent.</p> <p>In an action for malicious prosecution it is erroneous to permit the plaintiff to testify to his intent in doing the act for which he was prosecuted, unless that intent was known to the prosecutor, as probable cause for the prosecution is dependent upon the apparent and not the actual commission of a crime.</p> <p>6. Instructions — Modification.</p> <p>An instruction asked collating defendant’s testimony and including selected and segregated statements from plaintiff’s testimony and stating a legal conclusion if such testimony was true was properly modified by striking out the segregated parts of plaintiff’s testimony, as full effect cannot be given to a party’s testimony without considering it as a whole.</p> <p>7. Principal and Agent — Instructions—Appropriation by Creditor of Debtor’s Money.</p> <p>Where money of a company comes into the hands of its agent under special direction how to dispose of it, he has no right to appropriate it to his own use by paying to himself a debt owed him by the company. And while such appropriation might not constitute a crime in an action for malicious prosecution by such agent where he had been prosecuted for such appropriation of his principal’s funds, an instruction that “ when the money of a debtor comes lawfully into the hands of a creditor, the creditor has the right to apply such amount of said money as is due him from said debtor to the satisfaction of his debt ” is erroneous.</p> <p>8. Instructions — Cueing Bad by Good Instruction.</p> <p>A bad instruction ordinarily is not cured by a subsequent good instruction on the same question. Unless the contrary clearly appears it will be presumed that the effect of the bad instruction was injurious.</p> <p>9. Practice — Question for Jury.</p> <p>In an action for malicious prosecution where there is a conflict in the evidence bearing upon the question of probable cause, it is a question for the jury and not the court to determine.</p>

<p>1. Contracts — Public Policy — Suppressing Evidence.</p> <p>A contract made by a defendant with plaintiff whereby he agreed to furnish plaintiff certain letters written by his codefendant and also to so conduct himself toward his codefendant as to deter him from calling him as a witness and thus suppress testimony material to his codefendant’s defense, in consideration that plaintiff would take no judgment against him and would divide with him whatever was recovered from his codefendant, cannot be justified as a contract to sell documents, but is also a contract to suppress testimony and is contrary to public policy and void.</p> <p>2. Same.</p> <p>No claim founded in bad faith, in moral turpitude, in deception upon the public or a third person, or in fraud practiced by one contracting party on the other can constitute a good cause of action.</p> <p>3. Same.</p> <p>A contract made with one party to a suit to withhold evidence respecting the truth of the controversy is a fraud practiced on the other party to the suit and is against public policy and good morals, and void.</p> <p>4. Same.</p> <p>Where the tendency of a contract is to promote unlawful acts, it is illegal and against the policy of the law, without regard to circumstances indicating that the promisor will perform acts which are unlawful.</p>

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

<p>Appellate Practice — Findings op Trial Court — Contracts.</p> <p>Where the question as to whether a contract was or was not made was purely a question of fact, dependent upon conflicting evidence, and two trial courts in passing upon the question found in favor of the same party, the finding is conclusive on the appellate court.</p>

<p>1. Appellate Practice — Yerdict Conclusive.</p> <p>A verdict of a jury found upon conflicting evidence, where the evidence is sufficient to support the verdict, is conclusive upon the appellate court.</p> <p>2. Practice — Admission of Immaterial Evidence — Harmless error.</p> <p>The admission of immaterial evidence is not sufficient grounds for reversal of judgment where it clearly appears that such evidence could not have prejudiced appellant’s cause.</p> <p>3. Same — Striking out Testimony.</p> <p>The admission of irrelevant testimony is generally cured by the court striking out such testimony and instructing the jury to disregard it.</p> <p>4. Practice — Objectionable Argument.</p> <p>Error assigned upon improper remarks of counsel in argument will not be considered unless the objectionable remarks and proceedings thereon be preserved by bill of exceptions.</p> <p>5. Same.</p> <p>Error assigned on improper argument of counsel will not be considered unless the improper remarks be objected to at the time and the court be requested to direct the jury to disregard such objectionable remarks.</p>

<p>1. Bills and Notes — Interest—Pleading—Evidence.</p> <p>Where a note provided for the payment of a certain rate of interest after maturity, in an action upon the note an answer that alleged that it was not intended by the parties that interest at that rate should ever be collected, but that the provision for interest in the note was designed merely as a penalty to secure the prompt payment of the indebtedness, states no defense to the action and should be stricken out on motion. Parol contemporaneous evidence would be inadmissible to contradict or vary the terms of the note and an averment of a contrary intention, without more, is bad.</p> <p>2. Deeds of Trust — Substitute Trustee — Sale—Suit for Balance-Defense.</p> <p>Where a deed of trust provided that in case of the death, inability or refusal to act of the trustee, the legal holder of the note might by writing duly acknowledged, substitute another person to act in his stead, in an action for the unpaid residue of the note after sale by a substitute trustee, an answer that alleged that the appointment of the substitute trustee was not recorded prior to the sale by him and that by reason thereof the public were discouraged from' buying the property at its full cash value, states no defense to the action and should be stricken out on motion. As the trust deed did not provide for the recording of the appointment of the substitute trustee, he was under no obligation to record such appointment before sale and the fact that it was not recorded at the time constituted no reason why the public should be discouraged from bidding at the sale.</p> <p>3. Practice — Sale under Trust Deed — Inadequate Price — Striking out Evidence — Harmless Error.</p> <p>In an action for the unpaid balance of a note secured by deed of trust after foreclosure of the deed of trust and sale, the striking out of evidence as to the value of the property offered by defendant was not prejudicial error where the evidence stricken out and all the evidence offered did not show such a difference between the actual value and the amount for which it was sold as to cast suspicion on the sale.</p>

<p>1. Cities and Towns — Ordinances—License—City Scavenger.</p> <p>Sections 3312 and 3313, General Statutes, authorizing cities and towns to enact ordinances necessary for the safety, health and comfort of their inhabitants gives to cities and towns ample power to pass an ordinance creating the office of city or town scavenger and providing that no other person shall do scavenger work for the citizens of the city or town without the payment of a license fee, fixed by the ordinance, and procuring a license, and fixing a penalty for the violation of the ordinance.</p> <p>2. Same.</p> <p>An ordinance creating the office of city scavenger and defining his duties and prohibiting others from doing scavenger work without a license is not invalid because it fails to provide the special manner in which the scavenger work must be done.</p>

<p>1. Cities and Towns — Violation of Ordinance Procured by City Officer.</p> <p>A city will not be permitted to recover a penalty for the violation of an ordinance where such violation is induced by the city through one of its officers.</p>

<p>1. Pbincipal and Agent — Pleading.</p> <p>In an action by an agent against bis principal for commissions where the complaint alleged that plaintiff was appointed the agent of defendant through its duly appointed state agents and that defendant agreed through its duly authorized agents with plaintiff that he should have exclusive right to solicit business and issue policies for defendant, which allegations of agency were not denied, the agency of plaintiff was admitted and it was unnecessary to prove it.</p> <p>2. Pbincipal and Agent — Pboof of Agency.</p> <p>In an action by an agent against bis principal where the plaintiff claims his appointment through a general state agent of defendant, the . burden is on the plaintiff to show that the agent through whom he claims his appointment had authority to appoint agents for defendant, but where plaintiff's proof failed to show such authority and the defendant by its proof supplied the deficiency in plaintiff's proof by showing the authority of the appointing agent the plaintiff can as well succeed on the strength of the 'case as made by the whole testimony as that made by his own.</p> <p>3. Pbincipal and Agent — Powee of Appointing Agent to fix Compensation.</p> <p>The power to an agent to appoint agents includes the power to fix the compensation of such agents.</p> <p>4. Pbincipal and Agent — Appointment in Wbiting — Compensation — Evidence. ’</p> <p>Where the appointment of an agent is made in writing but the writing is silent as to compensation, the compensation may be fixed by parol, and parol evidence is admissible to show what compensation was agreed upon.</p> <p>5. Appellate Pbactice — Vebdict.</p> <p>The verdict of a jury upon conflicting evidence where there is evidence to support it is conclusive upon the appellate court unless there is such preponderance and weight of evidence against the verdict as to make it apparent that it was rendered from passion and prejudice.</p>

<p>1. Pleading — Breach of Warranty.</p> <p>In an action for breach of warranty an allegation in the complaint that a tenant of the premises falsely and wrongfully claimed to own and hold the premises under and by virtue of a tax sale, states no cause of action for breach of a covenant in the deed that the premises were free and clear from all taxes, and an amendment alleging the' year for which the tax sale was claimed added nothing to the sufficiency of the complaint.</p> <p>2. Same.</p> <p>In an action for breach of warranty an allegation that another party had brought suit in ejectment against plaintiff of which suit defendant was notified and that plaintiff was compelled to defend the premises at great cost states no cause of action for breach of covenant in the deed that the premises were free and clear from all former and other grants, bargains and sales, and an amendment that the action in ejectment was based on a “paperwriting in the form of a conveyance” purporting to be a quitclaim deed from defendant to the premises prior to plaintiff’s deed and averring that at the time of the execution of the quitclaim deed defendant had no right or title, adds nothing to the sufficiency of the complaint.</p> <p>3. Same.</p> <p>A covenant in a deed obligating the grantor to defend against all lawful claims does not obligate him to defend against the claims of every adventurer who may see fit to assert a claim to the premises.</p> <p>i. Pleading — Amendment—Striking out.</p> <p>An amended pleading that merely restates the substance of the old pleading in a different form is not an amendment and is properly stricken out.</p>

<p>1. Pbactice — Unlawful Detainee — Suit Pending to Quiet Title —Abatement.</p> <p>Pendency of an action to quiet title cannot be pleaded in abatement of an action of unlawful detainer of the same property where there are different parties to the different actions.</p> <p>2. Same.</p> <p>One who has by deed of trust conveyed the legal title to a trustee cannot maintain an action to quiet title to the premises conveyed although he remains in possession and one to whom he conveys his right of redemption takes no greater rights than her grantor. Such an action to quiet title cannot be pleaded in abatement of an action of unlawful detainer for the same land.</p> <p>3. Pleading — Unlawful Detainee.</p> <p>In an action of unlawful detainer, a complaint that sets forth the facts constituting title and right of possession and the unlawful detention, is sufficient without alleging the legal conclusion, that plaintiff is the owner of and entitled to possession, or that the possession is wrongfully detained from him.</p> <p>4. Pbactice — Unlawful Detainee — Notice—Vaeiance.</p> <p>A judgment for possession in an action of unlawful detainer under a foreclosure sale will not be set aside because in the demand for possession the date of the trust deed was stated as January 11, instead of June 11, where it is evident the defendants were neither harmed nor surprised by such mistake.</p>

<p>1. Practice — Dismissals—Rules of Court.</p> <p>Under a rule of court providing that “ upon the call of the docket at the commencement of each regular term, without notice to either party, and in term time upon proper notice to the opposing party, all actions, suits and proceedings in which no order of progress has been made or entered of record for the period of one year or more shall be dismissed by the court for failure to prosecute, unless the court for good cause shown shall otherwise direct,” a case regularly brought to issue cannot be dismissed until it is regularly reached upon the calendar for trial, even though no order may have been made or entered in the case for more than a year.</p> <p>2. Same.</p> <p>After a cause is at issue, the code itself, sections 175 and 176, provides how and when it shall be brought to trial or dismissed and a rule of court cannot deprive a party of his right to rely upon the code.</p> <p>3. Same.</p> <p>A rule of court providing for the dismissal of cases for want of prosecution can only be enforced against a party for a failure to perform, within the prescribed time, some act required of him by law.</p>

<p>1. Evidence — Depositions—Waiver op Objections.</p> <p>In an action contesting tlie probate of a will, an objection to depositions that a copy of the will, and not the original, was attached to the dedimus is expressly waived by a stipulation that the will did accompany the dedimus.</p> <p>2. Evidence — Bevocation op Will — Declarations—Bes Gestíe.</p> <p>Under all statutes regulating the revocation of wills by acts other than instruments executed for the purpose with a solemnity equivalent to that required for the execution of the original document, the declarations of the deceased made at the time are admissible as part of the res gestw to show the intent with which the act, relied upon as a revocation, was done, but declarations made by deceased long after the act are not admissible to show its intent.</p> <p>3. Practice — Admission op Incompetent Evidence — Harmless Error.</p> <p>In a trial to the court, the admission of incompetent evidence is not reversible error where the competent evidence was sufficient to support the judgment, and under the competent evidence introduced the judgment was right. -It will be assumed that the judge decided the case on the evidence properly admitted.</p> <p>4. Wills — Bevocation.</p> <p>Under the Colorado statutes, 2 Mills’ Ann. Stats. sec. 4655', providing how wills maybe revoked, where a testator drew pen marks through her signature to a will, at same time calling upon persons present to witness that she destroyed the will, stating that she thereby revoked the will, it was such obliteration in contemplation of the statute as would amount to a revocation although the name was still legible.</p>

<p>1. Fire Insurance — Adjustment of Loss — Compromise and Promise to Pay — Waiver.</p> <p>Where an insurance agent authorized, to adjust losses and to compromise and pay claims for his company adjusted a loss and compromised on a less amount than that claimed by the insured which the agent expressly promised to pay, it was a waiver of all right to insist on a forfeiture of the policy on account of any breach of condition of that instrument, and in an action by the insured upon the promise to pay, the defendant could not plead a breach of the condition of the policy in that plaintiff had fraudulently and wilfully represented that property had been destroyed when in fact plaintiff had removed the property from his place of business before the fire as a forfeiture of the policy. Such defense could only go to reduce the recovery of plaintiff by the value of the property represented to have been destroyed, but which was not destroyed.</p> <p>2. Practice — Instructions—Harmless Error.</p> <p>A judgment will not be reversed on account of erroneous instructions that are not prejudicial but err in favor of the party seeking to reverse the judgment.</p>

<p>Trust Deeds — Foreclosure Sale — Action to Set Aside.</p> <p>A foreclosure sale under a deed of trust will not be set aside on tbe ground that tbe trustee by mistake bad misunderstood the time to which a postponement of the sale had been arranged by his counsel, where the beneficiaries in the trust deed were not responsible for such mistake and had offered to extend the loan upon the payment of interest.</p>

<p>1. Promissory Notes — Demand of Payment.</p> <p>It is not essential that a demand be made on the maker of a note before bringing an action against him on the note. A demand is only a prerequisite to the enforcement of the liability of some third person -who stands in the position of indorser, guarantor or surety for the maker.</p> <p>2. Pbactice — Amendment — Summons.</p> <p>A summons signed by an attorney is subject to amendment by the court.</p> <p>3. Pbactice — Summons—Misnomeb—Amendment.</p> <p>In an action upon a promissory note where the complaint correctly stated the names of the makers, but the summons misstated the middle initial of one of the defendants and the summons was served upon the right defendant and he appeared specially to move to quash the summons, his motion to quash was properly overruled, and the summons was properly amended upon motion of plaintiff by inserting the proper initial.</p>

<p>1. Pleading — Contracts—Assumption of Mortgage Debt.</p> <p>A complaint that alleged that plaintiff purchased several chattels on which defendant held a junior chattel mortgage, that defendant was claiming that in the contract of purchase plaintiff assumed and obligated himself to pay a chattel mortgage senior to that of defendant, when in fact plaintiff only agreed to pay the overdue interest on such senior chattel mortgage, and asking for a construction and if necessary a reformation of the contract and for such other relief as to the court might seem meet and proper, stated a cause of equitable action against defendant, since if plaintiff had agreed by the terms of his contract to assume and pay off the senior chattel mortgage, the junior chattel mortgage of defendant would become as against plaintiff a prior lien upon the chattels.</p> <p>2. Pleading — Allegation of Pacts — Legal Conclusion.</p> <p>Where a complaint alleges facts from which a legal conclusion would necessarily arise, it is not necessary to allege the legal conclusion.</p> <p>3. Pleading — Contracts—Parties.</p> <p>In an action to construe and reform a contract £o which defendant was not a party, where the complaint states a cause of action against the defendant, the defendant by answer must either disclaim or set up some facts showing that some right of his would be prejudically affected if the relief prayed for be granted, else judgment will be entered for plaintiff on the pleading, with costs against the defendant.</p> <p>4. Judgments — Execution—Administrators.</p> <p>In entering a judgment against an administrator,-it is error to award execution; the judgment in such case should be that it be payable out of the estate of deceased in due course of administration, but such error does not make it necessary to remand such judgment to the trial court, but the judgment in proper form may be entered in the appellate court.</p>

<p>1. Marriage and Divorce — Contracts—Public Policy.</p> <p>A contract to marry pending proceedings for divorce and while the contracting husband was the lawful husband of another woman, of which the contracting wife had knowledge, was contrary to public policy and good morals and utterly void.</p> <p>2. Divorce and Alimony — Notice of Decree.</p> <p>Where a woman who was a witness in a divorce suit, and had knowledge of the purposes of the suit, afterwards married the divorced husband she is chargeable with notice of the contents of the decree and is chargeable with notice of a judgment for alimony against the husband.</p> <p>3. Fraudulent Conveyance — Husband and Wife.</p> <p>Where a divorced husband with a judgment for alimony against him married another woman who had full knowledge of the decree of divorce and judgment for alimony, in pursuance of a marriage contract entered into prior to the divorce, conveyed to his new wife real estate and retained no property from which the judgment for alimony could be made, the conveyance to the new wife was fraudulent and void and the property was subject to the judgment for alimony.</p>

<p>Tax Sale Certificates — Contract to Redeem of Assign — Specific Performance.</p> <p>The holder of tax sale certificates to certain town lots contracted with the owner whereby in consideration of the payment of a certain sum in cash, and a promise to pay a certain other sum within a certain time, he agreed to give to the owner an option to redeem, after the expiration of the time for redemption, within a time to be agreed upon, and further agreed that in case of the failure of the owner to pay the entire amount necessary to redeem all the lots, to assign to her a number of the lots to correspond with the amount paid. The owner paid part of the sum fixed to be paid within a certain time, hut failed to pay the amount fixed, and the time having expired, the holder of the certificates refused to allow the owner to redeem the lots or to assign to her the certificates for the money already paid, whereupon the owner redeemed all the lots in excess of what she had paid to the holder of the certificates from the treasurer and filed suit against the holder of the certificates to compel him to assign to her or cancel the certificates to the amount paid for by her, and to enjoin the treasurer from issuing a deed thereon. Held that a complaint setting forth the foregoing facts stated a good cause of action, and was not subject to demurrer. That plaintiff might maintain an equitable action to compel defendant to assign to her the certificates and to restrain the treasurer from issuing deeds thereon.</p>

<p>1. School Districts — Limitations—Pleading and Proof.</p> <p>Where the legality of the organization of a school district is questioned, and it is attempted to be sustained by the statute of limitation (section 3038, General Statutes, 1883), and the application of the statute is dependent on matters dehors the record, the statute must not only be pleaded, but the pleader must produce proof of the facts which make it applicable.</p> <p>2. School Districts — Taxes.</p> <p>Where the levy of a tax by a school district under section 3058, General Statutes, 1883, is assailed, to sustain the tax it must affirmatively appear that in making the levy the organization proceeded in accordance with the statute and kept within its limit, and that the levy was for the purposes and uses authorized by the statute.</p> <p>3. School Districts — Taxes—Property Subject to Sale.</p> <p>Property located in a school district is alone subject to sale for taxes levied on the property of the district, and where a tract of land lies partly within and partly without the boundaries of a school district, that part lying without cannot be sold for taxes levied upon that part within the district.</p> <p>4. Same.</p> <p>Where a school district tax is levied on personal property belonging to one person and situated on land belonging to another, the land'cannot be sold for the taxes.</p>

<p>1. Waterworks — Contracts—Estoppel.</p> <p>Where a town granted a franchise to construct waterworks and the contract provided for the laying of steel, wrought or cast iron pipes, and the contract further provided that in case the water company should issue bonds upon the waterworks, the mayor and recorder should upon request of the company, at any time after the completion of the work and a satisfactory test had been made, indorse upon the bonds a certificate that said waterworks had been completed and satisfactorily tested, and the company laid pipes of steel or cast iron lined with cement, and before the pipes were laid, but after, they were distributed through the town, objection was filed with the board of trustees as to the material of the pipes being laid, and the board of trustees after thoroughly investigating'the matter approved of the pipes, and after the work was completed passed a resolution directing the mayor and recorder to indorse on the bonds a certificate that the works had been completed and tested, and afterwards on several occasions the board adopted resolutions requiring the company to extend its mains under the contract, which was done by using the same kind of pipe as was first used, in an action by the water company against the town for hydrant rentals, the town is estopped to set up the defense that the pipes laid were not of the material provided for in the contract.</p> <p>2. Waterworks — Contracts.</p> <p>Where the ordinance authorizing the construction of waterworks and constituting the contract between the town and waterworks company provided that the works should at all times after completion be capable of discharging a certain amount of water with a oertain force, and a subsequent section provided that in the event of accident to the mains or hydrants, whereby they became out of repair, the company should within forty-eight hours after notice repair such defect, and upon failure to do so should forfeit all rental from the time of such notice until the repairs were made, and authorizing the town to deduct from rentals due the company all damages caused to citizens by reason of such mains or hydrants being out of condition, held that the latter provision is a modification of the former, and that an accident to the pipes disabling the plant temporarily cannot be set up as a violation of the contract and be pleaded as a defense to an action by the company for hydrant rentals; that the only penalty for the failure of the company to repair would be a deduction of rentals accruing after notice and for damage.</p> <p>3. Same — Quality of Water.</p> <p>Where the contract between a town and water company provided that the water to be furnished should be obtained from a certain river, tobe of good quality, filtered or settled, and fit for domestic use, the contract is not violated as to the quality of water to be furnished because the water furnished was at times discolored when the river was high and turbid, or because the water was hard, if the company complied with the contract by taking water from the river designated, and filtered it by the method usually adopted for filtering water in large quantity. The contract only requires that the water should be of as good quality and as fit for domestic use as could be obtained from the river designated by filtering or settling.</p> <p>4. Waterworks — Contracts—Water Pressure — Evidence.</p> <p>Where a contract between a town and water company provided that the works should at all times be capable of discharging a certain number of streams of a certain size to a certain height through 100 feet of hose, a violation of the contract cannot be shown by evidence that the works failed to throw the water to the required height when tested through hose from 150 to 400 feet long. To show a failure to comply with the contract by evidence of tests, the tests must have been made under the conditions provided in the contract.</p> <p>5. Same.</p> <p>A contract between a town and water company which required that the works should at all times be capable of discharging water with a certain force does not require the company to maintain at all times the necessary pressure to discharge the water with the force stipulated, but the contract is complied with if the works are at all times capable of exerting a pressure sufficient to throw the water to the height mentioned.</p> <p>6. Same — Statutory Construction.</p> <p>Under subdivision 69, section 3312, General Statutes, 1883, authorizing cities and towns to contract with individuals or companies, constructing waterworks, to supply, said cities or towns with water and to pay therefor such sum as may be agreed upon between the contracting parties, and subdivision 71 providing that if such contract is made, such city or town shall levy each year and cause to be collected a special tax sufficient to pay off the amount agreed to be paid for such water supply, not to exceed three mills on the dollar for any one year, the amount that the city or town may contract to pay is not limited by the limit placed on the amount of special tax that may be levied and collected. A city or town may contract to pay more than the three mills levy will cover and pay the deficiency from its general revenue. The failure of a city or town to collect for any one or more years a sufficient sum to discharge its obligation for water rents could not extinguish its liability on the contract.</p> <p>7. Cities and Towns — Waterworks—-Contracts—Pleading.</p> <p>In an action by a water company against a town or city upon a contract for supplying the town or city with water, if the defendant would rely upon a want of authority in the city or town to make the contract, such want of authority must be pleaded as a matter of defense.</p>

<p>1. Chattel Mortgages — Legal Title — Rights op Mortgagor.</p> <p>After maturity of a chattel mortgage, the legal title to the chattels vests in the mortgagee, and he is entitled to possession. The mortgagor can bring no action at law for possession, but must resort to equity to compel redemption.</p> <p>2. Chattel Mortgages — Redemption.</p> <p>The mortgagor in a chattel mortgage may at any time before forclosure, even after maturity and possession by the mortgagee, tender the amount due and compel its acceptance and relieve his property from the lien, and the debt being paid the mortgagee may be enjoined from further proceeding toward foreclosure.</p> <p>3. Bills and Notes — Payable in Property — Payment.</p> <p>The maker of a promissory note payable in property has a right to satisfy the note by payment in money.</p> <p>4. Same — Chattel Mortgages — Redemption.</p> <p>Certain lumber dealers entered into a contract with a sawmill man, whereby the latter was to supply the former with certain lumber, and the dealers furnished the mill man with certain supplies for which they took his note for a certain amount payable in lumber and secured by a chattel mortgage on the mill and fixtures. The chattel mortgage was given alone as security for the note, and not to secure the contract to furnish lumber. Held, that the consideration of the note was the supplies furnished, and it might be paid in money, and that the assignee of the mortgagor had a right to redeem from the chattel mortgage by tendering the amount of the note, notwithstanding the default of the mortgagor in his contract to furnish lumber;</p> <p>5. Same.</p> <p>In an action by the assignee of a mortgagor to redeem from a chattel mortgage by tendering the amount in money of a note made payable in property, where the answer alleges the contract to pay the note in lumber, but alleges no specific damages on account of the failure to deliver the lumber, the damage was the value of the supplies furnished for which the note was given, and was liquidated and fixed by the amount of the note and was completely satisfied by the payment of the note.</p>

<p>1. Taxes and Taxation — Legality of Assessment — Presumption.’</p> <p>Public policy requires that all presumptions should be in favor of the legality of an assessment for taxes, and the burden is upon him who assails it to show its illegality.</p> <p>2. Same — Pleading.</p> <p>Section 3812, Mills’ Ann. Stats., provides that when lands are assessed to unknown owners no one description shall comprise more than one town lot, and section 3822, Mills’ Ann. Stats., provides, “ Each tract of land, and each town lot, shall be valued and assessed separately, except when one or more adjoining tracts or lots are returned by the same person, in which case they may be valued and assessed jointly. ” In an action against a county, under section 3776, Mills’ Ann. Stats., to recover taxes for which certain town lots were sold on the ground that they were wrongfully assessed together, where the complaint fails to allege that they were assessed to an unknown owner, it will be presumed that they were assessed to the known owner. And where the complaint fails to allege that the several lots were not adjoining, the presumption is that they are adjoining lots. And a complaint that fails to allege either that the lots were assessed to an. unknown owner, or that they were not adjoining, is insufficient to state a cause of action.</p> <p>3. Pleading — Pbesumption.</p> <p>Where a complaint describes several town lots by consecutive numbers and in the same block, in the absence of an allegation that they are not adjoining it will be presumed that they are.</p>

<p>1. Special Constable — Authority of Justice to Appoint.</p> <p>Tlie authority of a justice of the peace to appoint a special constable to execute a writ was sufficiently shown, where it appeared that the justice indorsed on the back of the writ a certificate of the appointment, reciting that there was no regular constable at command, and there was some evidence that the regularly elected constable had left the country and within less than three weeks from the time of the appointment of the special constable the board of county commissioners at a regular meeting entered an order that a vacancy in the office of constable in the precinct existed because of the departure from the country of the regularly elected officer.</p> <p>2. Same.</p> <p>If a justice of the peace has personal knowledge of the fact that there is no regular constable at his command to serve process, it is not necessary that any showing be made to him before he appoints a special constable.</p> <p>3. Jurisdiction of Justice of the Peace.</p> <p>A justice of the peace has jurisdiction of an action for wages for work performed in his precinct, although the defendant resides in another county.</p> <p>4. Attachment — Béféndant Concealing Himselé — Affidavit.</p> <p>Where a plaintiff in an attachment suit had addressed several letters to the defendant at his place of residence and received no answer and had been told by defendant’s neighbors that he had left the country and the defendant had failed to keep an appointment made with plaintiff to meet him and settle the claim, he was justified in making an affidavit that defendant was concealing himself so as to avoid service of process.</p> <p>5. Same.</p> <p>To justify an affidavit for attachment on the ground that defendant was concealing himself so as to avoid service of process, it is not necessary to make positive proof that defendant was concealing himself to avoid service. It is enough if sufficient facts are shown to justify a belief of such in the mind of a reasonable person.</p> <p>6. Injunctions — Judgments.</p> <p>An injunction to stay the collection of a judgment, on the ground that the service was irregular and the judgment void, will not issue unless the complainant shows that the judgment is inequitable, and that if set aside and another trial had, a different result would be reached. And where the complainant admits that part of the amount of the judgment is due, he must tender or offer to pay the amount admitted.</p>

<p>1. Mechanics’ Liens.</p> <p>Outside the statute there is no right to a mechanic’s lien, and one asserting such a lien must bring his claim within the terms of the law.</p> <p>2. Mechanics’ Liens — Pleading and Proof — Variance.</p> <p>In an action to enforce a mechanic’s lien, a complaint alleging that the work and material for which a lien was claimed were furnished by contract with the owner, for the construction of a dwelling house on the land, was not sustained by proof that plaintiff by contract with the owner placed a furnace in a house already in existence as a completed structure at the time the contract was made.</p> <p>3. Mechanics’ Liens — Fixtures.</p> <p>One claiming a mechanic’s lien on land on account of a furnace placed in a dwelling house must show that the furnace was so attached to the reality as to lose its character as movable personal property.</p>

<p>1. Husband and Wife — Pbopebty Eights of Married Women.</p> <p>In Colorado, in respect to matters of business, a married woman is upon the same footing with a feme sole. She may engage in business, acquire property and dispose of it, independently of her husband, and unbound by any restraints or disabilities of coverture.</p> <p>2. Husband and Wife — Ebaudulent Conveyance — Attachment.</p> <p>A husband executed a trust deed to land and certain shares of ditch company stock and afterwards sold and transferred the property, subject to the trust deed, to O. O. failing to redeem, the trust deed was foreclosed and the wife of the grantor became the purchaser, paying in cash the interest and costs of foreclosure and executed a new mortgage on the land and part of the ditch stock to the beneficiary in the former trust deed to secure the principal of his debt and afterwards sold the property mortgaged, subject to the mortgage, and retained the balance of the ditch stock. In the absence of a showing that the transfer of the property to O. and the purchase by the wife at the foreclosure sale were parts of one general scheme to place the property beyond the reach of the husband’s creditors, it -was held that the facts did not show a fraudulent conveyance of the husband’s property such as would support an attachment on that ground.</p> <p>3. Husband and Wife — Preferred Creditors — Attachment.</p> <p>A husband may make his wife a preferred creditor in paying to her a bona fide debt, and other creditors have no legal grounds of complaint. An honest transfer of property by a husband to his wife in satisfaction of a prior obligation cannot be made the basis of a proceeding in attachment.</p> <p>A Debt of Husband to Wife — Consideration for Conveyance.</p> <p>Where a husband borrows money from his wife, with a promise to repay it, even though it be in a state where the common-law rule as to the personal property of the wife prevails, and although she might not be able to enforce her claim.at law, yet an equity would exist in her favor that would constitute a valid and sufficient consideration for a conveyance of real estate to her by her husband.</p> <p>5. Evidence — .Fraudulent Intent.</p> <p>Fraudulent intent is usually to be gathered from the facts and circumstances in evidence, but to warrant the inference of fraud there must be proof of some fact or circumstance from which it may be legitimately inferred.</p> <p>6. Laches.</p> <p>Where a judgment creditor for eight years made no effort to collect his judgment, during nearly all of which time the judgment debtor had property out of which the judgment could have been collected, and in the mean time the debtor acquired property and transferred it to his wife in payment of an antecedent debt, the judgment creditor is not entitled to an attachment on the ground of the fraudulent disposition of his property by the debtor.</p> <p>7. Practice — Instructions—Harmless Error.</p> <p>Where at the end of a trial a motion for nonsuit should have been allowed but was overruled and the jury returned a verdict for defendant, errors in the instructions are immaterial since the jury rendered the decision, the court should have rendered without consulting them.</p>

<p>1. Exemptions.</p> <p>Where property about to be levied upon is absolutely exempt, it is not necessary for the debtor to claim his exemption, but the officer must know the fact and if he levy upon such property, he is a trespasser.</p> <p>2. Exemptions — Food fob Exempt Work Animals.</p> <p>Where a debtor has work animals exempt by law from execution and has on hand no more than enough food for such animals for six months, an officer levying an attachment on such food is bound to know that it is exempt, and the debtor is not required to claim his exemption at the time. But where the levy was made in the presence of the debtor and he inquired of the officer if he had a bond, and being answered in the affirmative he told the officer to go ahead, such statement of the debtor warranted the sheriff in proceeding, and in making the levy he was not a trespasser.</p> <p>3. Exemptions — Demand foe Return of Exempt Property — Liability of Officer.</p> <p>Where an officer levies an attachment upon exempt property, but where he is not chargeable as a trespasser, the debtor if he desires to assert his right of exemption, may within a reasonable time claim his exemption and demand the return of the property.' Where such demand is made within a reasonable time, it is the duty of the officer within a reasonable time to return the property, and what is a reasonable time within which the officer must return the property is a question for the jury to determine. And where after such demand a reasonable time is allowed the officer to return the property before beginning against him an action for the statutory penalty, he cannot after the commencement of the action relieve himself of liability by returning the property.</p> <p>4. Exemptions — Liability of Officer — Return of Property.</p> <p>Where the liability of an officer had accrued for levying upon exempt property and failing to return the same within a reasonable time after demand, and an action was commenced against him for three times the value, the fact that the property was returned after the right of action accrued, even though it was appropriated by the exemption claimant, would not release the officer from his statutory liability, but would only reduce the liability the amount of the value of the property.</p>

<p>1. Taxes and Taxation — Principal and Agent — Evidence.</p> <p>Where a nonresident who had loans outstanding in the state placed the notes in the hands of an agent to bold for collection, with power to receive and receipt for money and to release securities, but with no authority to hold or invest the money when collected, the agent was not authorized to list the notes for taxes, and tax schedules made by such agent were not competent evidence in a proceeding against the estate of his principal for the collection of taxes.</p> <p>2. Taxes and Taxation — Pbomissoby Notes due Ebom Residents to Nonbesidents.</p> <p>Promissory notes, mortgages and deeds of trust due from residents of Colorado to nonresidents are not subject to taxation in Colorado.</p> <p>3. Same — Statutoby Constbuction.</p> <p>To make money of - nonresidents taxable under section 3924, Mills’ Ann. Stats., it must be sliown that, the money is kept and used and loaned within the state for the purposes of investment and profit. To show that a nonresident loaned money in the state and sent the notes to the state for collection is not enough to make such money or notes subject to taxation in the state. It must appear that the money is kept in the state for business purposes, loaning, collecting, reinvesting and using for profit.</p>

<p>1. Corporations — Attorneys’ Fees.</p> <p>Attorneys’ fees for services in preparing articles of incorporation, filing them, etc., are proper charges against the corporation.</p> <p>2. Same — Ratification.</p> <p>Where an attorney at the request of an incorporator who afterwards became president of the corporation performed services in preparing the incorporation papers and afterwards continued to perform services upon the request of the president, and the corporation having knowledge of the attorney’s account made frequent payments by checks of the corporation, the corporation will be held to have ratified the acts of its president in contracting the indebtedness, and is estopped to deny it.</p>

<p>1. Appellate Practice — Abstract of Record.</p> <p>The appellate eoiirt is under no obligation to resort to the record to ascertain if material evidence was introduced on the trial not shown by the abstract. The court has a right to rely on the abstract which the appellant furnishes, and if the appellee desires more, it is his duty under the rules to present to the court a statement of it.</p> <p>2. Replevin — Domestic Animals — Damage pob Detention.</p> <p>Damage for detention of domestic animals may be recovered, based upon the value of their use, whenever it is made to appear that the owner intended to use the animals, and by wrongful detention had been deprived of their use. But where the evidence fails to show a purpose or intention on the part of the owner to use such animals, it is erroneous to submit to the jury the question of the value of such use.</p>

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

<p>1. Pleading — Evidence—City Obdinance — Negligence.</p> <p>When a cause of action is based upon the violation of a city ordinance, the ordinance and the facts constituting its violation must be pleaded, but the disregard of duties imposed by an ordinance may subject a railway company to the imputation of negligence, and in an action against'a street railway company, for injuries caused by its negligent conduct in the management and operation of its cars where the negligence relied on, consists in whole or in part, in the violation of an ordinance, the ordinance is admissible in evidence as any other fact without having been pleaded.</p> <p>2. Evidence — Negligence — Contbibutoby Negligence — Habmless Ebeob.</p> <p>In an action for damage for personal injuries to plaintiff alleged to have been caused by defendant’s negligence, where the uncontradicted evidence shows that the injury was the result of plaintiff’s contributory negligence, so that a nonsuit upon that ground was correct, error committed in excluding evidence tending to prove defendant’s negligence was harmless and immaterial.</p> <p>8. Contbibutoby Negligence.</p> <p>Where one went upon the track of a street railway in front of and in close proximity to a fast moving car, which she knew was approaching at a fast rate of speed, and so near to where she attempted to cross that she knew or should have known that in attempting to cross the track she was taking desperate chances, and was killed, her death was the direct result of her own contributory negligence and the railway company is not liable.</p> <p>4. Negligence — When a Question oe Law.</p> <p>Ordinarily the question of negligence is one of fact, and where the evidence is in any degree conflicting in any material particular, or if upon the facts and circumstances there is room for an honest difference of opinion, the question must be submitted to the jury. But where the facts are not in dispute, and there can be but one opinion as to their effect, the question is one of law for the court to decide.</p> <p>5. Judicial Notice — Common Knowledge and Expebience.</p> <p>Whatever is matter of common knowledge and experience, the court is bound to recognize, and where in the light of common knowledge and experience an act is obviously imprudent, the law determines its effect and the court declares the law. And where a woman went upon the track of a street railway immediately in front of a rapidly approaching car with full knowledge of its approach, the court properly held as a matter of law that her act was such contributory negligence as would bar a recovery for injuries sustained.</p> <p>6. Liability Notwithstanding Negligence of Injured Person;</p> <p>A street railway company may be held liable for injury to one upon its track, notwithstanding the contributory negligence of the injured person, but in order to apply this doctrine it must appear that the defendant had knowledge of the peril or dangerous position of the injured person in time to have avoided the injury. The rule does not apply where one suddenly went upon the track in front of a fast moving car, and so near the car that it could not be stopped, after the entrance upon the track, and before the collision, and the fact that the motorman saw a woman running towards the track waving her handkerchief to stop the car, was not enough to charge him with anticipation that she would attempt to cross the track in front of the car, notwithstanding she was on the opposite side whence passengers usually boarded the car.</p>

<p>1. Practice — Action for Salary — Setoff.</p> <p>In an action against a city by a policeman for his salary during the balance of his term for which he was appointed, and of which he was deprived hy an alleged wrongful removal, what plaintiff earned, or might by reasonable diligence have earned, in other employment during the time, is a proper offset against any sum the plaintiff might recover, and the refusal of the court to receive evidence of such offset is reversible error.</p> <p>2. Cities and Towns — Fixing- Terms of Office — Power of Mayor.</p> <p>In the absence of a statute or valid ordinance fixing the term of office to which a policeman of a city was appointed, the mayor has no authority to declare or fix such term.</p> <p>3. Offices and Officers — Indefinite Term — Removal.</p> <p>Where a person is appointed to an office without a fixed or specified term, he holds only duriug the pleasure of the appointing power, and may be removed by that power without the assignment of any cause, without notice and without a hearing being accorded the officer.</p> <p>4. Cities and Towns — Removal of Officers — Statutory Construction.</p> <p>Section 3383, General Statutes, expressly confers upon city councils of cities of the second class the power to remove at its pleasure a policeman of the city from office.</p> <p>5. Cities and Towns — Removal of Officers — Ordinances.</p> <p>An ordinance of a city of the second class providing for the removal of officers by tbe city council and providing that no officer shall be removed until he shall have notice of such intended removal and of the charges preferred against him and a hearing and opportunity to exculpate himself before the council, does not abridge the arbitrary power of the city council to remove at its pleasure a policeman appointed by such council without any specified or fixed term of office.</p>

<p>1. Mining Lease — Partnership—Action to Dissolve — Receivership — Liability for Expenses.</p> <p>Where certain partners in a partnership for leasing and working a mine, in which the lease required the continuous working of the mine, brought an action against other partners for dissolution of the partnership and for an accounting, and asked for and procured the appointment of a receiver, who, in accordance with their petition, was directed by the court to take possession of and work the mine, extract, mine and ship ore to the best interest of the property, and from the proceeds to pay all laborers and other expenses connected with the mining and treatment of the ore, and the balance of the proceeds to be deposited with the clerk of the court pending the accounting between the partners, and the working of the mine proving unprofitable there was a deficiency in the proceeds to pay the expenses of the receiver in working the mine, held that plaintiffs were liable to the receiver for such deficiency, and a judgment was properly entered against them and in favor of the receiver for such expense, including compensation for the receiver and attorneys’ fees incurred in resisting plaintiffs’ objections to his report.</p> <p>2. Same.</p> <p>Where a receiver is appointed and there is no fund out of which his expenses can be paid, the party at whose instance he was appointed should be required to provide the means of payment and it is proper to tax such costs against him. In an action between partners for dissolution of partnership and accounting', where a receiver was appointed at the instance of plaintiffs and there was no partnership fund to pay the receiver’s expenses, it was proper to enter a judgment against plaintiffs for such expenses, and if defendant partners are properly chargeable with any portion of the expenses, that is a matter between them and plaintiffs to be settled upon final determination of the action.</p> <p>3. Receivers — Reports—Exceptions.</p> <p>Items in a receiver’s report, including expenses for wages and materials in working a mine, which were not excepted to at the time and were approved by the court, cannot afterwards and on the final report of the receiver be excepted to.</p> <p>4. Receivers — Compensation.</p> <p>Where a receiver is appointed by a court and his duties are of a single and fixed character, it is not necessary to require proof of his services and an examination of his account in order to fix the amount of his compensation, but the court may properly allow him a per diem as his compensation.</p> <p>Same — Attorneys’ Rees.</p> <p>Where the court has personal knowledge as to the necessity of appointment of counsel for a receiver and the services rendered, proof is not required as to the necessity of such employment, or of the value of the services, but the court may allow the compensation upon his own personal knowledge.</p> <p>6. Same.</p> <p>The allowance of compensation to receivers for their services and for attorneys’ fees is largely in the discretion of the court and his action therein will not be interfered with on appeal, unless it appears there has been an abuse of discretion.</p>

<p>1. Negligence — Burden of Peoof.</p> <p>In an action to recover damage for injuries occasioned by the act of another, as a general rule the burden is on the plaintiff to show that tlie act causing the injury was negligently done or that the defendant omitted the care which the law imposes on him in the conduct of his own affairs or the management and use of his own property.</p> <p>2. Same.</p> <p>In an action to recover damage for injuries occasioned by the act of another, unless it is brought within some exception to the general rule, there must be evidence which establishes or from which the jury may reasonably i nfer that the defendant was negligent in what he did, or in omitting to do that which he ought to have dune, and whenever the evidence is consistent with either the existence or nonexistence of negligence the matter should not be left to the jury.</p> <p>3. Negligence — Presumptions—Explosion of Boiler.</p> <p>The' mere fact of the explosion of a stationary steam boiler does not raise a presumption of negligence.</p> <p>4. Same — Burden of Proof.</p> <p>In an action for damage caused by the explosion of a stationary steam boiler the plaintiff must show by evidence some negligence to which the explosion can be attributed.</p> <p>5. Evidence — Negligence—Incompetent Servant.</p> <p>In an action for damage caused by the explosion, of a stationary steam boiler, the rejection of evidence that a servant to whom was intrusted the management and operation of the boiler was a man of intemperate habits and incompetent, was not reversible error where plaintiff failed to prove or offer to prove that the explosion was in any wise attributable to any negligence or incompetency of such servant.</p>