Volume 156 — Colorado Reports

1. SPECIFIC PERFORMANCE — <italic>Vendee and Vendor — Abatement —</italic><italic>Deficiency</italic>. It is a general rule that a vendee has the right to insist upon performance by the vendor to the extent that the latter is able to perform with an abatement in the purchase price equal to the value of the deficiency or defect. 2. <italic>Vendee and Vendor — Trial Court — Award — Credit — Ingress</italic><italic>and Egress — Loss — Error</italic>. Where vendees had elected to require vendors to perform land sale contract so far as vendors could after having conveyed strip thereof to public service company, there was no error by trial court in awarding a credit of $2000 for expenditure necessary to provide ingress and egress in view of loss of ingress and egress because of conveyance of strip to company by the vendors.

1. CONTRACTS — <italic>Intention — Good Sense — Plain Understanding —</italic><italic>Words — Acts</italic>. The intention of the parties in making a contract controls; and such intention ordinarily should rest on the good sense and plain understanding of the words used, and the acts directed to be performed or forborne by such words. 2. <italic>Stipulation — Condition — Promise — Intention</italic>. A stipulation in a contract may be a condition or promise, depending on the intention of the parties. 3. <italic>Condition — Creation — Express — Implied</italic>. An intent to create a condition in a contract must appear expressly or by clear implication. 4. <italic>Intention — Doubt — Interpretation — Promise — Policy —</italic><italic>Avoidance of Forfeitures</italic>. In cases of doubt as to the intention of the parties, courts resolve the doubt in favor of an interpretation making the engagement a promise rather than a condition, as such rule of construction is founded on a policy of avoiding, if possible, forfeitures.<page_number>Page 205</page_number> 5. <italic>Conditions — Violations — Forfeitures</italic>. Violations of conditions usually cause forfeitures, whereas breaches of contract can be compensated by damages. 6. <italic>Forfeitures — Judicial Policy</italic>. It is part of the judicial policy of this state to frown upon forfeitures. 7. <italic>Test — Distinction — Promise — Condition</italic>. If in an agreement words that state that an act is to be performed purport to be the words of the person who is to do the act, the words are interpreted, unless a contrary intention has been manifested, as a promise by that person to perform the act; if the words purport to be those of a party who is not to do the act they are interpreted, unless a contrary intention has been manifested, as limiting the promise of that party by making performance of the act a condition. 8. <italic>Test — Stipulation — Root of Contract — Breach — Partial</italic><italic>Affectation — Damages</italic>. A test applied, at times, to determine whether a stipulation in a contract is a condition or a promise relates to subsidiary provisions in a contract, provision supplementary to the ruling design of the contract; by it a court determines whether the particular stipulation goes to the root of the contract so that a failure to perform it would render the performance of the rest of the agreement by plaintiff a thing different in substance from what defendant has agreed to do, or whether it merely partially affects it and may be compensated for in damages; the latter is viewed as a promise, the former, a condition. 9. <italic>Time for Performance — Omission — Reasonable Time</italic>. Where contract fails to specify time for the performance of certain matters, the law provides that performance shall be done within a reasonable time.

1. SEARCHES AND SEIZURES — <italic>Motion to Suppress — State Court —</italic><italic>United States Supreme Court — Decision — Arrest</italic>. United States Supreme Court decision of <italic>Mapp v. Ohio</italic>, prohibiting admission in state court of illegally obtained evidence, was binding on trial court at time of motion to suppress evidence, even though it had not been handed down at time of defendant's arrest. 2. <italic>Lawful Search — House — Search Warrant — Valid Arrest</italic>. Ordinarily, one's house may lawfully be searched without a search warrant when the search is incidental to a valid arrest at the house; and such search is legal even though it would have been possible to procure a search warrant. 3. <italic>United States Supreme Court — Decision — Laudable Ends —</italic><italic>Illegal Means — Admission of Evidence</italic>. Under the United States Supreme Court decision of <italic>Mapp v. Ohio</italic>, laudable ends no longer justify illegal means to obtain those ends; and illegal searches can no longer furnish a foundation for the admission of evidence found and taken under illegal search. 4. <italic>Statute — Constitutionality — Federal — State — Unlawful</italic><italic>Drugs — Person or Place</italic>. The statutory provisions of C.R.S. '53, 48-6-11, which authorizes a search under any circumstances<page_number>Page 244</page_number> of premises without a warrant whenever an officer has personal knowledge or reasonable information that certain unlawful drugs are being kept on any person or in any place, are clearly and unequivocally unconstitutional when subjected to the guarantees afforded to all persons by the Fourth Amendment to the Constitution of the United States and Article II, Section 7 of the Colorado Constitution. 5. <italic>Fourth Amendment — Law Enforcement — Inferences —</italic><italic>Evidence — Neutral Sources — Officer — Crime</italic>. Although the Fourth Amendment does not deny law enforcement the support of the usual inferences which reasonable men draw from evidence, yet, its protection consists in requiring that those inferences must be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. 6. <italic>Lawful Search — Search Warrant — Incident to Lawful Arrest</italic>. It has always been assumed that one's house cannot lawfully be searched without a search warrant, except as incident to a lawful arrest at the house. 7. <italic>Belief — Article — Concealment — Search — Without Warrant —</italic><italic>Unlawful — Probable Cause — Applicability</italic>. A belief, however well founded, that an article sought is concealed in a dwelling house, furnished no justification for a search of that place without a warrant, and such searches are constitutionally unlawful notwithstanding facts unquestionably showing probable cause; these principles have recently been made applicable to the states as well as to the federal government. 8. <italic>Determination of Magistrates — Warrants — Hurried Action —</italic><italic>Officers — Arrests</italic>. The informed and deliberate determinations of magistrates empowered to issue warrants are to be preferred over the hurried action of officers who may happen to make arrests. 9. CRIMINAL LAW — <italic>Speedy Trial — Two Terms — Severance —</italic><italic>Vacation of Trial Date — Waiver — Statute</italic>. Where record disclosed that as a result of defendant's motion for a severance the trial court vacated the trial date in order that defendant could be tried separately from his wife, and that defendant at that time expressly waived the requirements concerning the terms of court, defendant's contention, that he must be set at liberty pursuant to the terms of C.R.S. '53, 39-7-12, because he was not tried before the expiration of the second term of court after his commitment, is not<page_number>Page 245</page_number> tenable, as under such circumstances the statute is not applicable.

1. APPEAL AND ERROR — <italic>Findings of Court — Trier of Facts — Effect —</italic><italic>Reviewing Court — Competent Evidence</italic>. Finding of court as trier of facts are binding on reviewing court if supported by any competent evidence. 2. VENDOR AND PURCHASER — <italic>House — Absence of Agreed Price —</italic><italic>Determination — Reasonable Value</italic>. It is general rule that in the absence of an agreed price, court is generally required to determine price of house on basis of its reasonable value. 3. CONTRACTS — <italic>Reasonable Value Rule — Price — Determination</italic>. Under<page_number>Page 342</page_number> general principles of contract "reasonable value rule" is universally applied where no contract price can be determined. 4. VENDOR AND PURCHASER — <italic>House — Improvements — Reasonable</italic><italic>Value — Determination</italic>. Where vendor and purchaser had failed to fix definite purchase price of house, and evidence as to reasonable value of property varied, held, court need not take highest figure but could find that an amount less than that paid by vendor was the reasonable value considering the length of ownership and subsequent use. 5. <italic>Materials and Labor — Estimate — Evidence — Actual Cost —</italic><italic>Remodeling of House</italic>. In remodeling of house, where parties failed to fix an exact figure for materials and labor, but evidence showed that purchaser agreed to pay vendor actual cost of materials and labor and characterized the figures presented to her as "an estimate," held, as vendor's figures presented actual cost of materials and labor paid to others, vendor is entitled to reimbursement for his exact costs on basis of evidence. 6. WORK AND LABOR — <italic>Vendor and Purchaser — Carpenter — Hourly</italic><italic>Rate — Compensation — Error</italic>. Where purchaser admitted that vendor was to be compensated for time he devoted to job of remodeling house, and it was established that vendor was a qualified carpenter, builder and contractor and hourly wage for a carpenter was $3.34 an hour which amounted to $133.60 for a forty hour week, held, testimony as to agreement to compensate vendor at rate of $100.00 per week was below hourly rate and trial court failed to properly award vendor compensation for his services. 7. INTEREST — <italic>Vendor and Purchaser — Remodeling Cost — Statutory</italic><italic>Rate — Date</italic>. Vendor, who had agreed to sell house and do certain remodeling work, was entitled to interest at statutory rate from date of original judgment on balance of remodeling cost. 8. VENDOR AND PURCHASER — <italic>Remodeling Cost — Vendor's Lien — Execution</italic><italic>— Satisfaction of Judgment</italic>. Vendor, who had agreed to sell house and to remodel it on cost plus basis and who was to be paid in cash as work progressed, was entitled to vendor's lien to secure amount of unpaid balance due in cash upon completion of work and to have execution issue as to that amount in event of failure of purchaser to satisfy judgment against her therefor.

1. MUNICIPAL CORPORATIONS — <italic>Property — Special Assessment — Improvement</italic><italic>— Special Benefit</italic>. It is well settled that a special assessment will not lie against property unless the improvement creates a special benefit to that property. 2. <italic>Ordinance — Adoption — Costs of Improvements — Prima Facie</italic><italic>Evidence — Property — Special Benefit</italic>. Under C.R.S. '53, 89-2-18, the adoption of an ordinance assessing costs of improvements is prima facie evidence that the property is specially benefited. 3. <italic>Appeal and Error — Evidence — Sufficiency — Review</italic>. Where there was ample evidence in the record to support the trial court's findings that the property assessed was not benefited, Supreme Court cannot disturb such determination on review. 4. <italic>Assessment — Practice and Procedure</italic>. The bringing of a protest action after the assessment had been levied has been held to be proper. 5. <italic>Assessment — Objection — Apportionment — Property Owners —</italic><italic>Determination</italic>. The only time objection to an assessment can be made is after apportionment among the property owners has been determined and the assessment levied by the city. 6. <italic>Improvement — Completion — Assessment — Protest — Trial</italic><italic>Court — Correct Holding</italic>. By permitting improvement to be completed and then protesting the assessment on its property the Railroad was not guilty of laches or estoppel and trial court was correct in so holding.<page_number>Page 353</page_number>

1. CRIMINAL LAW — <italic>Appointed Counsel — Indigent Defendant — State</italic><italic>Constitution — Federal Constitution — Expense of State</italic>. Under Section 16, Article II of the Colorado Constitution, and the Sixth Amendment of the United States Constitution, an indigent defendant in a criminal proceeding is entitled to have counsel appointed at the expense of the state to assist him in his defense. 2. <italic>Appointed Counsel — Indigent Defendant — Right to Choose</italic>. The right to have state appointed counsel does not carry with it the right in the indigent defendant to choose that counsel. 3. <italic>Appointed Counsel — Able and Competent — Satisfaction of</italic><italic>Constitutional Obligation</italic>. Where the state provides competent counsel and that counsel ably and competently conducts the defense, the state has satisfied its constitutional obligation. 4. <italic>Appointed Counsel — Adequacy of Defense — Determination</italic><italic>of Court</italic>. With reference to state appointed counsel in a criminal proceeding, it is for the court, and not the defendant, to determine from the record whether a defense has been adequate. 5. <italic>Appointed Counsel — Record — Defense</italic>. Record shows that court appointed counsel ably and competently conducted the defense. 6. <italic>Appointed Counsel — Dance Attendance — Clients</italic>. Court appointed counsel in a criminal proceeding are not required to dance attendance upon their clients as a manifestation of ability and competency.<page_number>Page 376</page_number> 7. <italic>Appointed Counsel — Preparation and Conduct — Constitutional</italic><italic>Requirement</italic>. So long as court appointed counsel has competently prepared the defense and ably conducted it, the constitutional requirement of assistance of counsel for indigent accused persons is met. 8. <italic>Judicial Notice — Records — Appointed Counsel — Admission</italic><italic>and Practice</italic>. Supreme Court took judicial notice of its own records that court appointed counsel for indigent defendant had been duly admitted to the bar and had practiced law in Colorado for approximately 17 years at time of trial. 9. <italic>Sufficiency of Evidence — Admissibility — Submission of Case</italic><italic>— Guilt — Jury</italic>. Where trial court admitted in evidence testimony that fresh snow tracks were followed from the place of the burglary to house in which defendant was arrested shortly after the burglary, and defendant contended that no proper foundation had been laid and that there was insufficient evidence of guilt to go to the jury, held, the evidence was admissible. 10. BURGLARY — <italic>Evidence — Jury Question — Guilt</italic>. Trial court properly submitted case to the jury where evidence raised factual question as to guilt of defendant accused of burglary.

1. TRUSTS — <italic>Real Property — Evidence — Oral Testimony — Admissibility</italic><italic>— Written Checks — Appeal and Error</italic>. In action to impress trust on certain real property, title to which was held by defendants, husband and wife, by virtue of conveyance to wife by her mother, where testimony showed that wife had made certain property income distributions by check to her brothers and sisters, the plaintiffs, so as to repay each of them the sums they had loaned to their mother to help her pay off a farm mortgage, held, there is no merit to plaintiffs' contention that trial court erred in finding that the only evidence presented was oral testimony much of which was inadmissible because the written checks were in evidence. 2. APPEAL AND ERROR — <italic>Record on Error — Judgment — Presumption</italic><italic>— Trial Court — Determination</italic>. A record on error must be viewed in the light most favorable to the judgment, the presumption<page_number>Page 412</page_number> being that the determination of the trial court is correct. 3. TRUSTS — <italic>Express or Voluntary Trust — Essentials</italic>. In order to constitute an express or voluntary trust, clear, explicit, definite, unequivocal and unambiguous language or conduct is required. 4. <italic>Express Trust — Plaintiffs Burden of Proof — Evidence</italic>. Trial court was correct in holding that plaintiffs failed to carry their burden of establishing an express trust; their evidence at best was indefinite. 5. PARENT AND CHILD — <italic>Transfer of Property — Gift — Presumption</italic>. A transfer of property between parent and child is presumed to be a gift until the contrary is clearly and unequivocally shown.

1. MASTER AND SERVANT — <italic>Trust Instrument — Limitation — Termination</italic><italic>of Employment — Benefits — Pension Plan — Liability of</italic><italic>Trustee</italic>. Where trust instrument itself fixed limits of interest of employees in pension fund, employees who had terminated employment and who had not been paid full termination of employment benefits were entitled under pension plan to receive refund plus interest, but beyond that amount trustee could not be held liable to any employee. 2. <italic>Trust Fund — Increase — Indenture — Remaining Assets —</italic><italic>Refunds — Plan</italic>. Interest of employees in a trust fund is not increased or expanded by reason of the fact that the trust indenture does not expressly make provision for disposition of trust assets which may remain after refunds to employees have been made in accordance with stipulation in plan. 3. TRUSTS — <italic>Express Trust — Assets — Disposition — Reversion</italic>. Where an express trust is created, every asset thereof which is not disposed of in the due performance of the trust reverts to the creators of the trust in the event it ceases to function. 4. <italic>Trustees — Fund — Inter-Company Transactions — Trust Indenture</italic><italic>— Provisions</italic>. Defendant's acts with relation to inter-company transactions were unquestionably such as the trustees of the Fund were authorized to perform under provision of the Trust Indenture.<page_number>Page 458</page_number> 5. <italic>Evidence — Inter-Company Transactions — Profit — Conversion</italic>. Record is devoid of evidence that defendants profited individually from any inter-company transactions or that he converted to his own use any asset belonging to the Trust. 6. <italic>Record — Conclusion — Administration of Trust — Terms of</italic><italic>Indenture — Business Policy — Board of Trustees</italic>. Analysis of entire record leads to conclusion that defendant, when deserted by all other trustees, attempted to administer Trust in manner consistent with express terms of indenture and business policy previously established by full board of trustees over period of several years. 7. <italic>Damages — Execution — Evidence — Fraudulent Conduct — Willful</italic><italic>and Wanton — Enterprises — Failure</italic>. Under circumstances of threatened failure of a substantial number of defendant's enterprises and mass withdrawal of employees, record is devoid of evidence of willful, wanton or fraudulent conduct on part of defendant warranting exemplary damages or execution against body of defendant.

1. CRIMINAL LAW — <italic>Review — Questions Presented — Motion — Error or</italic><italic>Defects — Substantial Rights — Rules</italic>. Under Rule 37 (b), Colo. R. Crim. P., only questions presented in such motions will be considered on review, except that plain error or defects affecting substantial rights may be noted although they were not brought to the attention of the trial court. 2. ATTORNEY AND CLIENT — <italic>Responsible Counselors — Contentions of</italic><italic>Error — Support in Record</italic>. Responsible counselors do not submit contentions of error unless support therefor can be found in the record. 3. CRIMINAL LAW — <italic>Corroborative Evidence — Fragment of Glass —</italic><italic>Alibi</italic>. Trial court was justified in receiving into evidence fragment<page_number>Page 504</page_number> of glass from broken glass door of burglarized building as an example of small fragment found imbedded in sole of one of defendant's shoes worn by him at time of arrest close-by premises where robbery occurred; it was corroborative evidence tending to establish defendant's presence at scene of burglary and takes on added significance in view of defendant's unsuccessful effort to establish an alibi through other witnesses.