16 Colo. App.

Volume 16 — Colorado Court of Appeals Reports

88 opinions

16 Colo. App. 1Farris v. Wirt (1901)
 Appeal from the District Court of El Paso County.
16 Colo. App. 6Mackey v. Burns (1901)
1. Corporations — Directors—Stockholders—Trusts and Trustees. The directors of a corporation occupy the position of trustees for the stockholders and their conduct with reference to, and dealings with, the corporate property is subject to the closest scrutiny, and the utmost good faith is required in the exercise of the powers conferred upon them. 2. Contracts — Rescission. If a contract is rescinded it must be rescinded in whole and the parties be relegated to their original rights in respect to the subject-matter. A party to a contract cannot ask the court to sustain that part of the contract which is beneficial to him and rescind that part which is not beneficial. 3. Corporations — Mining Company — Directors—Contracts. Where a mining company owned a claim in conflict with other prior claims, and the company being without means the shareholders donated to the company part of the shares of capital stock held by them to be used in acquiring other property, and some of the directors having individually purchased the conflicting claims, a transaction by which the individual directors conveyed to the company the conflicting claims in consideration of part of the shares of capital stock that had been turned into the treasury of the company for that purpose, does not come within the rule that makes a contract for the purchase of property of a corporation by the directors void ab initio. 4. Same. Where a mining company was involved in litigation by a number of adverse suits growing out of conflicts with senior locations, and the company had no money and no credit by which it could raise money, and certain of the directors of the company individually purchased the conflicting claims, and by unanimous vote of the directors conveyed the claims to the company in exchange for shares of capital stock of the company, which had been donated to the company by shareholders for the purpose of acquiring other property, and the transaction saved the company from its financial difficulties and proved greatly beneficial to every one of its shareholders, a court of equity will not listen with much satisfaction to the complaint of one of the beneficiaries of the transaction who seeks to have it annulled, and will not set aside such transaction upon any slight showing. 5. Corporations — Directors—Purchase of Corporate Property. All purchases of corporate property or assets by a director or directors of the corporation are not absolutely void. 6. Same — Ratification. Where four of the five directors of a mining company individually purchased several older claims which conflicted with that of the company and afterwards conveyed the claims to the company in exchange for shares of the capital stock of the company that had been donated to the company by the shareholders for the purpose of acquiring other property, and after receiving the stock the direct- or notified all the stockholders that they could share in the stock thus received in proportion to the amount of stock of the company held by them and at the same price they paid for it, and all of the stockholders except one accepted and complied with the proposition, and that one was a director, and was present at the time and fixed the price at which the stock should be taken by the other directors and made the motion upon which the exchange was made, there was a ratification of the action of the directors by the stockholders as full and complete as if they had originally participated in and expressly authorized the transaction. 1. Corporations — Contracts—Directors—Stockholders. Where certain of the directors of a mining company individually purchased several claims in conflict with that of the company, and agreed to deliver to the owners of the claims as part of the purchase price,’within a certain time, a certain number of shares of the capital stock of the company, and the individual directors then transferred the claims to the company in exchange for shares of the capital stock, and the company as part of the consideration issued directly to the original owners the shares agreed to be given them by the directors, the original owners of the claims did not become shareholders in the company until the issuance to them of the stock, and could not as stockholders of the company maintain an action to set aside the transaction between the company and the individual directors by which the stock was exchanged for the claims, as the exchange was completed before they became stockholders. 8. Same. Where the individual directors of a mining company purchased several conflicting claims for which they agreed to deliver to the owners of the claims as part of the purchase price, within a certain time, a certain number of the shares of the capital stock of the company, the fact that the individual directors when purchasing the claims stated that they intended to convey the claims to the company, and at the request of the owners stipulated in writing that they would so convey them, did not constitute the directors trustees of the company in the purchase, unless in fact the directors were acting for and by authority of the company, so as to make the sale of the claims a transaction between the owners of the claims and the company that would make the claim owners equitable share owners in the company. Neither did a resolution adopted by the board of directors after the property had been purchased by the individual directors, authorizing the president and secretary of the company to purchase the claims “from the present owners” and to issue in payment therefor treasury stock of the company, a certain amount in lieu of the cash paid by the purchasers and a certain other amount given in payment of the claims by the purchasers, make the original owners of the claims equitable share owners in the company. 9. Corporations — Corporate Acts — Stockholders. Corporate acts which may be lawfully done, and are done, by the consent or authority of all the then stockholders cannot be questioned by one who afterwards becomes a stockholder.
16 Colo. App. 22Hiwassee Gold Mining Co. v. Hotchkiss Mountain Mining & Reduction Co. (1901)
 Appeal from the District Court of Hinsdale County.
16 Colo. App. 25Master Builders' Ass'n v. Domasoio (1901)
1. Boycott — Freedom of Contract — Individual Liberty. Every person has a lawful right in the exercise of his individual right and liberty to work for or deal with, or to refuse to work for or deal with, or to compete with, or refuse to compete with any person or persons, or class of persons as he sees proper, and whatever may be his motive, or whatever may be the resulting injury, the law can afford no redress. And what one person may lawfully do any number may do. 2. Same — Refusal to Compete — Notice—Injunction—Damage. Where an architect had solicited bids from contractors for the construction of a building, a notice to the architect signed by members of a builders’ association to the effect that they would decline to bid on the building if plaintiff’s bid was received in competition, and evidence that on account of such .notice the architect refused to consider plaintiff’s bid, was insufficient to sustain a judgment for damage or injunction against the association or the members signing the notice, where the evidence showed that not more than one fourth of the contractors of the city where the building was to be erected were members of the association. 3. Same. A verbal notice by a member of a builders’ association to an architect to the effect that if he received any bid from plaintiff for the construction of a contemplated building that each of the members of the association would refuse to bid upon the work or allow any one else to do so and thereby financially ruin and destroy the business of the architect by inducing others to desist from patronizing or employing him, and a statement that it was the intention of the members of the association to protest against the plaintiff doing any work or labor for any of the architects within the city, in the absence of evidence that the member giving the notice was authorized to speak for the association or the members thereof is insufficient to sustain a judgment for damage or an injunction against the association or the members thereof. 4. Same — Evidence—Admissions. An admission by counsel that a notice written to an architect stating that if he received plaintiff’s bid on a certain building to be constructed the signer's would refuse to bid thereon, was written, signed and delivered by defendants as stated, did not by the use of the words “as stated” admit all the allegations of the complaint as to the purpose, object and intent of the defendants in. giving such notice.
16 Colo. App. 35Fairbanks, Morse & Co. v. Kent & Stuchfield (1901)
1. Conversion — Identity—Evidence. In an action to recover for the conversion of certain stoves where a witness testified that he prepared the bill of sale of the property to plaintiffs, rented a room and stored the goods therein, and that the constable and defendants’ attorney broke the door down and took the stoves and that they were the same stoves involved in the suit, in the absence of any evidence to the contrary, was sufficient identity of the property to authorize a recovery. 2. Conversion — Value of Property — Evidence. In an action for the conversion of certain stoves, where the stoves were new, proof of the wholesale price at the place where they were purchased with the freight to the place of conversion added, is a sufficient proof of value at the place of conversion in the absence of any evidence to the contrary. 3. Attachment — Action for Conversion — Estoppel. Where goods were taken under an attachment, which belonged to other parties than the attachment defendant, a judgment sustaining the ■ attachment could have no effect as an estoppel against the owners of the goods in an action against the attachment plaintiffs for conversion of the goods, nor in anywise affect their right to recover. 4. Attachment — Replevin—Dismissal—Conversion. Where goods belonging to other parties than the attachment defendant were taken under attachment, and the owners replevied the goods which were retaken by the plaintiffs under a redelivery bond, and ' the replevin suit was dismissed, the judgment of dismissal of the replevin suit would have no effect upon a subsequent suit for conversion brought by the owners of the goods against the attachment plaintiffs. 6/ Attachment — Conversion—Demand. Where under an attachment, property is taken belonging to other parties than the attachment defendant, the taking is wrongful and it is not necessary for the owners to make demand for the goods before bringing suit for conversion. And the fact that in the attachment suit plaintiff recovered judgment and the attachment was sustained, has no bearing upon this proposition.
16 Colo. App. 39Klug v. McPhee (1901)
1. Appellate Practice — Nonsuit—Immaterial Errors. Where a plaintiff fails to prove, or to offer proof, of a necessary material fact to sustain his case and judgment of nonsuit is entered against him, no matter how many errors may have been committed against him on the trial, he cannot on appeal complain of such errors and have the judgment reversed therefor. 2. Appeal Bonds — Justification—Memorandum—Perjury. Where a surety on an appeal bond justified by making an affidavit that he was worth the sum mentioned in the undertaking over and-above his just debts and liabilities in property not exempt from execution, and under the justification was a memorandum signed by him reciting a list of property which he owned, the memorandum is neither a part of the justification nor the affidavit, and if-false would not subject the surety to a prosecution for perjury. And where such surety was prosecuted for perjury in making such justification, in an action by him for malicious prosecution, the truth or falsity of such memorandum is immaterial. 3. Malicious Prosecution — Perjury—Evidence. In an action for damage for malicious prosecution of plaintiff on a charge of perjury, to maintain his case plaintiff must show that defendant instituted and caused the prosecution. The fact that defendant’s name is indorsed on the back of the indictment as the prosecuting witness is not proof that he instituted the prosecution.
16 Colo. App. 44Paul v. Rooks (1901)
1. Attachment — Continuance—Justice of the Peace. Session Laws, 1897, section 2, page 113, which provides that in cases of attachment before justices of the peace, upon the return day of the summons the justice shall continue the hearing for twenty days is solely for the benefit of defendant’s creditors other than the plaintiff, to give them an opportunity to come in and prorate with the plaintiff, and a failure of a justice of the peace to comply with said statute does not prejudice defendant’s rights and he has no right to object thereto. 2. Pbactice Before Justice of the Peace — Summons—Appearance. In an action before a justice where the defendant was not served with summons, but upon the return day he wrote a letter to the justice of the peace applying for continuance of the case which was granted, the application for continuance was a general appearance and waived any defect in the summons or the service. 3. Attachment — Motion to Dismiss — Appearance. A motion by the defendant to dismiss an attachment before a justice of the peace is a general appearance in the case, and the defendant cannot change the effect of such motion by stating therein that he appears specially. 4. Practice Before Justice of the Peace — Appeal—Appearance. An appeal by a defendant from tlie judgment of a justice of tlie peace gives jurisdiction of the person and waives all defects in the summons or service thereof. 5. Certiorari — Appeal. The fact that an appeal could be taken from a judgment is not conclusive against the right to issue a writ of certiorari, but certiorari may issue notwithstanding an appeal would lie if in the judgment of the court the remedy of appeal is not plain, speedy and adequate.
16 Colo. App. 48Hartsock v. John Wright Hardware Co. (1901)
 Appeal from the District Court of El Paso County.
16 Colo. App. 54Morrell Hardware Co. v. Princess Gold Mining Co. (1901)
1. Practice — Motion—Notion. Where a motion to vacate a judgment was filed on the last day of the term at which the judgment was rendered, hut notice was not given to the opposite party until after the commencement of the next term, it was a motion of the term at which the notice was given and not of that at which the judgment was rendered. 2. Practice — Vacating Judgments. A court is without power to vacate its judgment, upon motion, after the expiration of the term at which it was rendered, except as provided in section 7ñ of the Code. 3. Mechanics’ Liens — Mines and Mining — -Lessor and Lessee. A mechanic’s lien does not attach to the interest of the owner of a mine on account of work done for, or materials furnished to, a lessee. 4. Judgments —Application to Vacate after Expiration of Term. To authorize the making of an application to set aside a judgment after the lapse of the term at which it was rendered, the inability of tlia party to present it during the term must be made to appear to the satisfaction of the court or-judge. Proof of want of knowledge of the judgment or want of facts which would charge the party with ■ knowledge would amount to proof of inability to act. , 5. Same — Discretion of Court — Appellate Practice. Motions to vacate judgments under section 75 of the Code are addressed to the sound discretion of the trial court, and unless it is clear that its discretion has been abused, appellate courts will not disturb its action thereon. 6. Same. An appellate court will not inquire very closely into the showing made upon which a trial court vacated its judgment under section 75 of the Code, where the complaint shows upon its face that it would not support the judgment rendered, and the effect of the judgment if suffered to stand would have been positive injustice. Under such . circumstances the act of the trial court will not be condemned as an abuse of discretion, however faulty the.affidavit may be. 7. Appellate Practice — Pinal Judgments. An order refusing to vacate a final judgment upon motion is not such a judgment as can be appealed from to the court of appeals, and an appeal taken and allowed from such an order, without appealing from the judgment sought to be set aside, was a nullity and did not remove the case from the jurisdiction of the trial court so as to preclude that court from reconsidering its action on the motion and from vacating the judgment.
16 Colo. App. 60Des Moines Life Ass'n v. Owen (1901)
1. Life Insurance — Application—Ealse Answers — Instructions. In an action upon a policy of life insurance where a defense was based upon the alleged falsity of two answers in the application, the falsity of either of which would have avoided the policy, an instruction that in effect told the jury that both answers must have been shown to have been false before the jury could find in favor of the defendant was erroneous. 2. Same. In an action upon a policy of life insurance where a defense was based upon the alleged falsity of the answer to the following question, in reference to the use of intoxicating liquors: “What has been your habit in this respect through life? ” to which the applicant answered: “ Temperate," an instruction that told the jury that before they could find for defendant they must find from the preponderance of the evidence that the habit of insured as to the use of liquors prior to the signing of said application had been intemperate and immoderate through life was erroneous in requiring defendant to show that such intemperate .habit continued through life. 3. Instructions — Undisputed Eacts. It is error to submit to the jury an admitted or undisputed fact as a question in dispute under the testimony. 4. Instructions — Two Defenses. Where there are two defenses interposed to an action either of which if established would defeat the action, an instruction from which the jury might conclude that if defendant failed to establish one defense, even though he sustained the other, it would be their duty to return a verdict for the plaintiff, is misleading and erroneous. 5. Instructions — Error not Cured. If misleading and erroneous instructions are given, the fact that other instructions are given which to some extent clearly and correctly lay down the rules of law applicable to the case, does not cure the error where there is nothing in the record from which it can be determined which instructions the jury followed upon the material • issues presented.
16 Colo. App. 65Bragdon v. Bradt (1901)
 Appeal from the District Court of Conejos County.
16 Colo. App. 70Hart v. Green (1901)
1. Continuance — Absent Witness — Diligence. It was not error to deny an application for continuance which alleged that applicant could not obtain the attendance of certain witnesses but which failed to disclose why their attendance could not be obtained or their depositions procured, and which made no showing of diligence, to procure the attendance or depositions of the witnesses. 2. Partnership — Rewards. The fact that several parties acted together to discover, arrest and convict certain persons for whose arrest and conviction a reward was offered is not of itself sufficient to support an inference of partnership so that an agreement by one of the several parties to divide the reward would bind the others. 3. Rewards — Practice—Directing Verdict. In an action by several parties to recover a reward offered by a county, where the county paid the reward into court and substituted another party, who claimed half the reward, as defendant, and the evidence showed an agreement by one of the plaintiffs to divide the reward with defendant, although the agreement was not binding on the other plaintiffs, defendant would be entitled to part of the amount going to the plaintiff who made the agreement, and if the evidence was otherwise sufficient to sustain a recovery it was error to direct a verdict for plaintiffs. 4. Same — Evidence. In an action against a county for a reward offered for the arrest and conviction of certain parties where the county paid the reward into court and substituted another party as defendant who claimed half of the reward by reason of an agreement with plaintiffs whereby he was to furnish plaintiffs the name of a party who could give information which would lead to the detection of the guilty parties for which he was to receive half the reward, and the evidence showed that he gave plaintiffs the name and address of a party, but there was no evidence that the person whose name was given to plaintiffs knew anything about the matter or furnished any information to plaintiffs that led to the arrest of the criminals, or in any way assisted in their conviction, the evidence was insufficient to sustain defendant’s claim and the jury was properly directed to return a verdict for plaintiffs. 5. Instructions — Directins Verdict. Where upon the evidence a verdict was properly directed for plaintiffs, the defendant cannot complain of a refusal to give instructions asked.
16 Colo. App. 76Hamilton v. Fowler (1901)
 Appeal from the County Court of Arapahoe County.
16 Colo. App. 78Meiss v. Meiss (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 80Howard v. Graybehl (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 86National Fire Insurance v. Denver Consolidated Electric Co. (1901)
1. Negligence — Liability of Electric Light Company. Where the owner of a building wired the building for electric lights or employed contractors to wire it, an electric light company which had nothing to do with the wiring of the building but which connected its wires with the wires of the building and supplied the building with electricity for lights is not liable for any damage caused by the defective and negligent wiring of the building. 2. Same — Notice. Where the owner of a building employed contractors to wire it for electric lights, an electric light company which afterwards supplied electricity to light the building was not chargeable with notice of the negligence with which the wiring was done or of defective material used, because a superintendent of construction for the electric light company casually saw the work as it was being done, so as to make the electric light company liable for damage from fire caused by the negligent manner in which the building was wired. 3. Same. Where the owner of a building employed independent contractors to wire the building and afterwards contracted with an electric light company to supply the building with electricity, the electric light company is not liable for damage from fire caused by the negligent manner in which the building was wired, because it delivered the current to the building without warning the owner of the danger attending its use, where the wiring is defective or negligently constructed. 4. Negligence — Liability of Electric Light Company. Where the owner of a building employed independent contractors to wire the building for electric lights and afterwards contracted with an electric light company to supply the building with light, and one of its chandeliers having fallen the agent of the owner telephoned the electric light company to send a man to fix it, and when he came he found that a fuse had beeu burned out and told the agent that it could not well be fixed that night, but that he would come the next morning, and upon being asked if there was any danger answered no, and about an hour later a fire occurred which destroyed the building, but whether or not it occurred from the fallen chandelier did not appear from the evidence, the electric light company was not bound by the answer of the employé sent, as to the safety of the building, and was not on account of such answer liable for damage caused by the fire.
16 Colo. App. 96Perkins v. Adams (1901)
1. Estates of Decedents — Mortgages—Executobs. Where the executors of an estate loaned money of the estate, taking a note secured by a deed of trust on real estate, at a foreclosure sale of the real estate the executors could purchase the property in their individual capacity. 2. Same — Attachment. Where two executors of an estate loaned money of the estate, taking a note payable to them as executors and secured by a deed of trust on real estate, and default being made the executors requested the foreclosure of the deed of trust, and at the foreclosure sale one of the executors bid in the property, in reality for the estate, and the purchase price was credited on the note, but the trustee’s deed conveyed the property to him in his individual capacity and name, reciting that he was the highest and best bidder and acknowledging receipt of the purchase price, which deed was duly recorded, attaching creditors of the individual executor who had no actual notice that the property was purchased for the estate and who levied upon the property as the property of the individual executor and for his individual debt acquired a lien superior to the equitable title of the estate. 3. Attachment — Liens—Unrecorded Title. An attachment lien acquired without knowledge of the existence of an outstanding unrecorded interest in land is superior to such outstanding interest, whether it rests in a resulting trust or in a deed.
16 Colo. App. 108Cowell v. South Denver Real Estate Co. (1901)
1. Pbactice — Poems of Action — Dismissal. Under the Code system a cause will not be dismissed because a party has brought his suit in equity when he ought to have brought it in law or vice versa. Nor because of the date at which it was filed with reference to the time when his rights accrued. 2. Pbactice — Ejectment. Where by will one-half interest in real estate was left to the widow for life with remainder to the children and the other half was left in fee to the children, the children could not maintain ejectment against the widow prior to partition, and an equitable suit is a proper remedy to ascertain the rights of the parties. 3. Pbactice — Action to set Aside Deed — Retubn of Punchase Peice. In an action to set aside a deed where it does not appear that plaintiffs received any of the purchase price, it is not necessary to offer to return the purchase price. A Same — Acquiescence. In an action to set aside a sale of real estate where the answer alleged acquiescence in the sale by plaintiffs which was denied by replication, it was sufficient to put that fact in issue without an averment of nonacquiescence in the original complaint. 5. Pbactice — Pasties—Action to Set Aside Deed — Waives. In an action against the purchasers to set aside a sale of real estate made by the widow as executrix, she is a proper and necessary party, but where the defendants fail to raise the objection either by demurrer or answer the objection is waived. 6. Estates of Decedents — Powebs of Executobs to Convey. An estate which descends to an heir by law or is devolved on him by will cannot be divested or taken away by the exercise of a power given to an executor unless the intention is clearly and unmistakably expressed, and its use essential to the execution of the evident purpose of the testator. 7. Wiles — Construction—Intention. In the construction of a will, the intention of the testator will control regardless of the phraseology in which he has expressed his purpose. 8. Wills — Executors—Power of Disposal of Estate. Where a widow is vested by will with a life estate to one-half interest in real estate with remainder to the children and the other half is vested in fee in the children, a power to the widow as executrix to dispose of the property for the best interest of the estate, will be held to be a naked power and limited to the estate vested in her by the will, unless the words of the will clearly indicate a larger power, and a larger power is necessary to effectuate the intentions of the testator. 9. Same — Pleading. Where a testator after directing his debts to be paid and certain bequests to his children, left one half of his residuary estate to his widow for life with remainder in fee to the children and the other half in fee to the children, and authorized the widow as executrix to dispose of any and all of the real estate upon such terms as in her judgment would be for the best interest of the estate, and authorized her to make deeds and provided that the same should vest in the grantees good title in fee, in an action by the children to set aside a conveyance of real estate made by the executrix, a complaint that avers that the executrix received from other sources more than enough money to pay all the debts and legacies, and shows that the sale was not necessary to carry out the purpose of the testator, stated a cause of action and it was error to refuse to allow plaintiffs to introduce any evidence to support such complaint.
16 Colo. App. 120People v. Clough (1901)
 Error to the District Court of Arapahoe County.
16 Colo. App. 130Smith v. Stubbs (1901)
 Appeal from the District Court of San Juan County.
16 Colo. App. 139Montezuma Cattle Co. v. Dake (1901)
1. Corporations — Pasties—Res Judicata. Where sis directors of a corporation for themselves as directors and themselves and all others similarly situated as stockholders brought an action against the corporation and the only remaining director as defendants joining a third party as trustee for the defendant director, and the corporation answered admitting and adopting the allegations of the complaint,. and afterwards another action was brought by the corporation as plaintiff and against the same director of the corporation as defendant, involving the same subject-matter, • there was a sufficient identity of parties in the two actions to make the judgment in the former action res judicata in the latter. 2. Judgments — Res Judicata — Subject-Matteb of Suit. A valid judgment is conclusive between the parties, not only as to such matters as were in fact determined in that proceeding, but as to every other matter which the parties might have litigated as incident to or essentially connected with the subject-matter of the litigation whether the same, as a matter of fact, were or were not considered. A judgment should settle the rights of the parties with reference to the subject-matter of the suit existing at the time of the trial and judgment. 3. Same. A judgment for defendant in an action by a corporation against one of its directors to cancel a promissory note and chattel mortgage, alleging fraud and deceit of defendant and' praying for an accounting of all property of the plaintiff taken possession of or disposed of by defendant, where the final judgment was rendered after the foreclosure of the chattel mortgage, was res judicata in a subsequent action between the same parties for damages growing out of the foreclosure of the same chattel mortgage and which also prayed for an accounting.
16 Colo. App. 146Denver & Rio Grande Railroad v. Loveland (1901)
1. Corporations — Misnomer—Amendments—Parties. Where there are two existing corporations, one the Denver <fc Rio Grande Railway Company and the other the Denver & Rio Grande Railroad Company and suit was brought against the former under its corporate name, and service was had upon it and it answered, and during the trial it was developed that the latter corporation should have been sued, it was error to allow an amendment substituting the latter corporation for the former as defendant by changing “Railway” in the corporate name to “Railroad” on the ground that it was a misnomer. 2. Parties — Substitution of Defendant — Waiver. Where during trial the court erroneously permitted the substitution of another defendant and the substituted defendant appeared and moved for a continuance, the error in making the substitution was waived. 3. Pabties — Substitution of Defendant — Continuance. Where during trial the court permitted the substitution of a different corporation as defendant by amendment and the substituted defendant appeared and asked for a continuance that it might have time to prepare and file its answer and procure the attendance of material witnesses, it was error to deny the application for continuance upon the admission by plaintiff that the witnesses if present would testify as alleged in the affidavit for continuance. The defendant was entitled to a continuance as of right without a showing.
16 Colo. App. 150Thatcher v. Salomon (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 162Rosebud Mining & Milling Co. v. Hughes (1901)
1. Pleading — Demurrer—Sufficiency of Complaint. If á complaint contains facts, well pleaded, sufficient to entitle the plaintiff to any relief, a demurrer will not be sustained upon tbe ground that it does not state facts sufficient to constitute a cause of action. 2. Same — Attorneys at Law — Negligence—Failure to Appeal. A complaint which alleges the employment of defendant, an attorney at law, to take a case for review from the trial court to a court of review and that plaintiff paid at defendant’s instance a certain sum for preparing a bill of exceptions, and at defendant’s request paid him a certain sum which he claimed was' necessary to cover expenses of taking the case up, and that defendant negligently failed to prosecute an appeal or sue out a writ of error within the time fixed by law, by reason of which plaintiff was deprived of the right to have the case reviewed, states a cause of action at least for the recovery of the sums paid for the bill of exceptions and other expenses and it was error to sustain a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
16 Colo. App. 165Nicholls v. McShane (1901)
1. Chattel Mortgages — Sales—Kescission—Fraud—Attachment. Where a vendee procures goods from a vendor through fraudulent representations and under such circumstances that the vendor may rescind the sale, the vendor by promptly rescinding the sale may maintain an action of replevin for the goods against a subsequent mortgagee who took the goods to secure a preexisting debt without showing that the mortgagee had knowledge of the fraud of the vendee. But if the vendor elects not to rescind the sale and proceeds by attachment of the goods in the hands of the mortgagee, he must show that the mortgagee had actual notice or knowledge of the fraudulent intent of the vendee. Constructive notice is insufficient, but knowledge of circumstances may be equivalent to actual notice. 2. Practice — Trial—Nonsuit or Directing Verdict. If he upon whom the burden of proof rests, falls short in any essential particular, or if any element of proof necessary to make out his case is wanting, upon motion of the defendant it is the duty of the court to enter a judgment of nonsuit and in a proper case, even to render final judgment for the defendant upon the merits. But to sustain such a motion, the court, looking at the evidence in the most favorable light for the plaintiff in which the jury would be at liberty to view it, must be able to say that there is no evidence which would justify a verdict for him, or such a clear and decided preponderanee’ of evidence against him as would require the court to set aside a verdict in his favor. 3. Fbatjd and Deceit — Evidence — Statements to Commebcial Agencies. Upon the issue as to whether or not a sale of goods was procured through fraud and false representations of the vendee, statements made by the purchaser to a commercial agency are admissible in evidence, if made sufficiently near the time of the transaction in question to have any connection with or bearing upon it, provided it be shown that the statements were brought to the knowledge of the vendor and were relied upon by him in making the sale and extending the credit. 4. Chattel Mobtgaqes — Fbaud and Deceit — Notice. Where a merchant mortgaged his stock of goods to the vice president of a bank to secure an indebtedness to the bank and made a second chattel mortgage to the same party to secure other creditors not connected with the bank, conceding that notice to the cashier of the bank that the merchant procured the goods through fraud was notice to the bank, such notice could not affect the creditors secured by the second chattel mortgage. 5. Same. Where a merchant purchased goods through fraud and afterwards mortgaged his stock of goods to secure an indebtedness to a bank, evidence that an attorney for creditors of the merchant called at the bank on two occasions and inquired about the financial condition of the merchant and was told by the cashier that he was financially sound and that the attorney could assure his correspondents that there was no risk in shipping him all the goods he might order, and the second time the attorney called he told the cashier that he thought the merchant was preparing for a failure and was getting in a large stock of goods for the purpose of defrauding his creditors, and the next day after this last interview the chattel mortgage was executed to the bank, was not sufficient to show that the bank had notice or knowledge of the fraud of the merchant in procuring the goods. 6. Fkaud and Deceit — Statutoby Constbuction. The act of 1897 (Session Laws, 1897, page 262) making it a misdemeanor for one who purchases goods upon credit, and before paying therefor, to sell, hypothecate, pledge or otherwise dispose of the same out of the usual course of business, and with intent to cheat or defraud the vendor, was not intended to have any effect in the determination of the validity or invalidity of any contract of sale, and does not prevent the preferance of a bona fide creditor having no ■ notice of the fraudulent intent of the debtor. 7. Chattel Mobtgages — Attachment—Bubden of Pboof. Where goods are attached in the hands of a chattel mortgagee, on the ground that the chattel mortgage was made to defraud creditors, the burden of proof is upon the attachment creditors to show the fraudulent intent of the chattel mortgagor and the participation in,’ or knowledge of, such fraud by the chattel mortgagee, before the latter is called upon to defend his title.
16 Colo. App. 178Krippendorf-Dittman Co. v. Trenoweth (1901)
 Error to the District Court of Gilpin County.
16 Colo. App. 185John G. Morgan Brokerage Co. v. Shemwell (1901)
1. Gaming Contbaots — Bucket Shops — Money Had and Received —Bubden op Pboop. An action wherein plaintiff seeks to recover from defendant, a brokerage company commonly denominated a “bucket shop,” a certain sum of money which plaintiff alleges she deposited with her husband to be kept for her and which without her consent he gambled away to defendant, betting upon the market price of certain grains, provisions and corporate stocks, is in reality an action for money had and received, the theory of which is that defendant has plaintiff’s money without her consent and without having parted with any consideration therefor, and the burden is upon plaintiff to show that the money in question belonged to her, that it was secured by defendant without her consent and without giving any valid consideration therefor. 2. Same — Evidence. In an action wherein plaintiff seeks to recover from defendant a certain sum of money which she alleges she deposited with her husband and which he gambled away to defendant, betting on the market price of certain grains, produce and corporate stocks, where the evidence shows that defendant paid back to the husband more money than was received from him, the evidence is insufficient to sustain plaintiff’s case and it is unnecessary to determine whether or not the contracts upon which the money was alleged to have been received by defendant were valid or invalid.
16 Colo. App. 190Lendholm v. Bailey (1901)
1. Limitation — Findings. Where in passing upon the question of limitation all the court said was that the action was not barred by the statute, it was not a finding of fact but simply a conclusion of law and is not conclusive upon the appellate court. 2. Pabtnbbship — Dissolution. Where partners abandon the partnership business and treat it as ended, it will work an absolute dissolution of the partnership. 3. Paetnebseup — Dissolution—Limitation. Where a partnership was 'formed between two persons for the purpose of buying and selling cattle, and after doing business for some time one partner made a bill of sale to the other of all cattle then owned by the partnership, and the buying partner took up all the outstanding indebtedness of the firm and gave his individual notes therefor and made a statement of account to the selling partner showing a balance due from the selling partner to the buying partner, to which statement no objection was made, it was a complete dissolution of the partnership, and the holding of the cattle by the buying partner was not a continuation of the partnership business. And in an action by one partner against the other for the balance due, the statute of limitation would begin to run from the time of making the statement of account.
16 Colo. App. 200Colorado Fuel & Iron Co. v. Menapace (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 205Northwestern Life Assurance Co. v. Tietze (1901)
1. Life Insubance — Application—Wabbanties. In construing an application for a policy of life insurance warranties are not favored and are not to be created or extended by construction, but must arise, if at all, from the fair interpretation and clear intendment of the words used by the parties, and if there be any doubt as to the character of the statement, it should be held to have only the force of a representation. 2. Life Insubance — Policy—Constbuction. A policy of life insurance must be liberally construed in favor of the insured so as not to defeat, without a clear necessity, the claim to indemnity which it was the object to secure in making the insur- „ anee. 3. Life Insubance — Policy—Contbacts—-Wabbanties. A policy of insurance, and it alone, is the final agreement or contract of the parties, and a warranty, if there be any, must be evidenced . by the policy. 4. Life Insubance — Application — Repbesentations—Wabeanties. Under the general rule, a representation in an application for insurance is no part of the contract, although the basis of it, while a warranty enters into and forms a part of the contract itself. If a representation be false in any respect material to tbe risk, tbe policy will be vitiated, while the terms of a warranty must be exactly and literally conformed to in every particular whether material or not in order to charge the insurer. 5. Life Insurance — Application—Policy. What was claimed to be the original application for a policy of life insurance was printed and written upon three pages. On the first page was the formal application stating the amount of insurance and plan, followed under a heading of “Form A” by numerous pointed questions which were answered and signed by the applicant. On the second page, after a short instruction to the medical examiner, appeared under the head “Form B” a list of questions relating to the medical examination, and the answers thereto. On the third page was an agreement signed by the applicant referring to forms A and B as the foregoing application and agreeing that the answers therein were material and warranted to be true. Held that the first two pages constituted the application and that the agreement was no part of the application. And where the policy referred to the application and made it a part of the contract but did not mention the agreement, the agreement was not a part of the policy. And statements made in the application were representations only and except as to something material to the risk their falsity could not avoid or defeat the policy. O. Life Insurance — Application—Evidence. Where an application for life insurance consisted of two parts, one being the formal application stating amount and plan with a number of questions and answers under the heading of “ Form A ” and the other part being questions and answers pertaining to the medical examination under the heading of “ Form B,” in an action upon the policy both forms were admissible in evidence as the application upon which the policy was issued and it was error to refuse to permit defendant to introduce form B as a part of the application, form A having been introduced by plaintiff. And the fact that the policy introduced in evidence by plaintiff had attached to it copies of both forms A and B does not cure the error where it does not appear that they were read to the jury, nor that the court made any ruling as to the effect of any part or portion of the entire exhibit.
16 Colo. App. 215Board of County Commissioners v. People ex rel. New Hampshire Savings Bank (1901)
Error to the District Court of Arapahoe County.
16 Colo. App. 250Harris v. Chambers (1901)
 Appeal from the District Court of El Paso County.
16 Colo. App. 257Swofford Brothers Dry Goods Co. v. Livingston (1901)
 Appeal from the District Court of Pueblo County.
16 Colo. App. 263Browns v. Lutin (1901)
1. Appellate Practice — Findings op Trial Court — Evidence. Tlie appellate court will not disturb the finding of the trial court upon conflicting evidence, if there is sufficient evidence to support the finding. 2. Same. The fact that a jury at one trial and the court at another made the same findings as to the essential and controlling fact, should have some weight with the appellate court, in determining whether there was sufficient evidence to support the finding. 3. Practice — Pleading—Amendment During Trial. The courts have large discretionary power with reference to the amendment of pleadings, and it was no abuse of that discretion to permit a defendant to amend his answer during trial,- where the plaintiff claimed no surprise, and was given time to plead to such amendment, which he did both by demurrer and motion to strike. 4. Practice — Evidence—Trial to Court. Where after a trial to, and disagreement by, a jury, the cause was by stipulation submitted to the court upon the evidence as introduced and received before the jury, an appellant cannot on appeal insist on errors in the admission and exclusion of evidence. 5. Evidence — Trial to Court — Presumptions. Where trial was to the court, it will be presumed that in rendering judgment, the court discarded incompetent evidence and relied only upon that which was properly admissible. 6. Practice — Trial to Court — Instructions. Where after trial to, and disagreement by, a jury, the cause was by stipulation submitted to the court and decided upon the evidence as introduced before the jury, on appeal no objection can be raised to the instructions of the court.
16 Colo. App. 266Perkins v. Boyd (1901)
 Error to the District Court of El Paso County.
16 Colo. App. 271Colby v. Thompson (1901)
1. Principal and Agent — Husband and Wipe — Contracts — Insurance. Where an insurance agent called at the home of an insured to inquire if he desired a renewal of a. policy about to expire and the insured being absent from home his wife told the agent that her husband desired the insurance continued, in the absence of evidence of the wife’s authority to act for her husband in the matter or of his ratification, the husband was not liable for premiums upon a policy issued upon the wife’s statement. 2. Eire Insurance — Mortgages—Contracts. A policy of fire insurance containing a clause for the protection of the mortgagee of the premises which provided that if the mortgagor neglected or refused to pay the premium the mortgagee should pay the same, was delivered by the insurance agents to the mortgagee and by him was delivered to the mortgagor. And the mortgagor failing to pay the premium the agent informed the mortgagee and told him he would cancel the policy if not paid, whereupon the mortgagee requested him not to cancel the policy and promised to pay the premium if the mortgagor did not. Held that the protection of the mortgagee’s interest was a sufficient consideration to support the contract and that his promise to pay the premium and the agreement of the agent not to cancel the policy constituted a valid legal contract binding upon both parties. 3. Appellate Practice — Evidence—Findings—Presumption. Where trial is to the court and the evidence is conflicting, on appeal it will be presumed that the court found all such facts as were necessary to support the judgment.
16 Colo. App. 274Kopplekom v. Colorado Cement Pipe Co. (1901)
1. Negligence — Pleading. A complaint which alleged in substance that defendant, a manufacturer of cement pipe, stored large quantities of the pipe upon certain lots in a thickly populated part of the city adjoining and in constant view of the public streets and without any fence or guard dividing the lots from the streets; that amongst the pipe so stored was one piece four and a half feet in diameter and two feet long, weighing from five to seven hundred pounds left lying upon its side in such manner that it could be rolled easily over the surface, and that by reason of its great diameter, short length and excessive weight it was easily turned from side to end; that the piping was attractive and a temptation for children to play therewith and that children did frequently play with it, which defendant well knew; that plaintiffs’ child, with others, all of whom were too young to appreciate the' • -danger, was playing with said short, heavy piece, rolling it over the surface, plaintiffs’ child being on the inside, when the pipe suddenly' turned from its side to its end and caught and killed the child, states a cause of action and it was error to sustain a demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. 2. Negligence — Dangerous Premises. If an owner keeps upon his premises something that is an attraction and allurement to the natural instincts of childhood, the law imposes upon him the corresponding duty to take reasonable precaution to prevent the intrusion of children, or to protect from personal injury such as may be attracted thereby. 3. Negligence — Contributory Negligence — Children. In applying the rule that he who seeks to recover damages for a personal injury suffered from the negligence of another, mustnot himself be guilty of negligence that substantially contributed to the result, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition. 4. Same. It is not the contributory act merely, but the contributory negligence of a plaintiff that will prevent his recovery, and the care and caution required of a child being according to its maturity and capacity only, this must be dependent upon and determined by the circumstances of each particular case.
16 Colo. App. 280Riley v. Collins (1901)
 Appeal from the County Court of Gunnison County.
16 Colo. App. 284McGovney v. Gwillim (1901)
 Appeal from the County Court of El Paso County.
16 Colo. App. 294Salida Building & Loan Ass'n v. Davis (1901)
 Appeal from the District Court of Chaffee County.
16 Colo. App. 298Witcher v. McPhee (1901)
 Appeal from the District Court of El Paso County.
16 Colo. App. 303Sullivan v. People (1901)
1. Official Bonds. An instrument executed by an officer in the form of an official bond, where no such bond is required of him by law, is not an official bond, is without force or effect and there can be no recovery upon it. 2. Official Bonds — District Court Clerks — Death of Surety— New Bond. Where one of the sureties on the official bond of a district court clerk died and upon the suggestion of one of the judges of the court he executed a new bond with other sureties and filed it with the secretary of state, but it did not appear that the bond was ever accepted or approved by any judge of the court, and there was no evidence that any such judge knew of its existence, and no order was ever entered of record requiring the clerk to file such new bond as provided in section 3299, Mills’ Ann. Stats., such bond was not an official bond and no recovery could be had against the sureties thereon. 3. Same — Presumption. The official bond of a district court clerk does not become insufficient merely because of the removal from the county, death or insolvency of one of the sureties, and where there is no record of any order requiring a new bond or of any inquiry into the sufficiency of the old one after the death of a surety, it will be presumed that the judge of the court complied with his statutory duty, inquired into the sufficiency of the bond and found it sufficient.
16 Colo. App. 308People ex rel. Layden v. Jackson (1901)
1. Assessors — Official Bonds — Surplusage. Section 910, Mills’ Ann. Stats., provides that an assessor shall give bond “ for the performance of his duties according to law and to the satisfaction of the hoard of county commissioners.” An assessor’s bond was conditioned, “ shall faithfully perform all of the duties of his office, and shall pay over all moneys that may come into his hands as such assessor, as required by law, and shall deliver to his successor in office all books, records, papers and other things belonging to his said office.” Held that the conditions of the bond following the obligation “ shall faithfully perform all of the duties of his office ” should be regarded as surplusage and rejected, and do not impair the legality of the bond. 2. Official Bonds — Liability of Sureties. The liability of sureties on official bonds is limited by their terms strictly construed. 3. Official Bonds — Liability of Sureties — Assessors. The sureties on an assessor’s.official bond are not liable to his successor for fees collected after the expiration of his term and during the time he wrongfully withheld the office from his successor.
16 Colo. App. 311Coe v. Waters (1901)
1. Bankruptcy — Discharge—Effect on Judgment. A judgment was rendered against a surety on an appeal bond and pending an appeal from such judgment by said surety he filed his petition in bankruptcy and was discharged from all debts and claims provable under the bankruptcy law against his estate. Held that the judgment on the appeal bond and all costs incurred by appellee in the trial of the action below and in defending the .. appeal from such judgment were claims provable in the bankruptcy proceeding, and the discharge of appellant was a payment of such claims by operation of law. 2. Appellate Pbaotice — Satisfaction of Judgment Pending Appeal-Dismissal. Where pending an appeal the judgment appealed from is paid and the subject of litigation is satisfied, the appeal will be dismissed, regardless of the effect of such dismissal on the sureties on the appeal bond.
16 Colo. App. 317Gold Coin Mining & Leasing Co. v. Gourlay (1901)
 Appeal from the District Court of Ml Paso County.
16 Colo. App. 326Cowing v. Cloud (1901)
 Appeal from the District Court of Saguache County.
16 Colo. App. 333Smith v. Smith (1901)
 Appeal from the District Court of Routt County.
16 Colo. App. 337People ex rel. Simpson v. Denman (1901)
 Error to the District Court of Arapahoe County.
16 Colo. App. 342Lindemann v. Belden Consolidated Mining & Milling Co. (1901)
1. Mechanics’ Liens. The right to a mechanic’s lien has no existence except by statute, and cannot be restricted or extended by the acts of contracting parties. 2. Mechanics’ Liens — Statutory Construction. A mechanics’ lien statute should be liberally construed as to the remedial portion of it, but it must be strictly construed in determining the question as to whether or not the right to a lien exists. 3. Mechanics’ Liens — Wiio may Acquire. Only those persons to whom the statute plainly or expressly gives the right to a lieu, can acquire it. 4. Mechanics’ Liens — Pleading. In an action to enforce a mechanic’s lien, it must be pleaded and affirmatively shown that the labor performed was for one or more of the purposes specified in the statute, in order that it may be made the foundation of a lien. 5. Mechanics’ Liens — Object oe Statutes. The object and purpose of mechanics’ lien statutes is to secure to the mechanic and material man who by their labor and material have directly contributed to enhance the value of property, the security of a lien thereon, to the extent they have thus added to its value, and their protection is not extended to services indirectly and remotely associated with the construction work. 6. Mechanics’ Liens — Mines and Mining — Expebt Wobk. The mechanics’ lien act gives a right to a lien upon mining property, only to those who do work or furnish material for the working, preservation or development of the property, or who do work or furnish material upon a shaft, tunnel, incline, adit, drift or drainage of a mine, lode or deposit. A professional mining expert and geologist is not entitled to a mechanic’s lien on a mine for work done in exploring, examining and considering a mine with reference to its mineral character and capacity to produce valuable and precious metals, and with reference to the quantity of ore in such mine and its value, and for making a report thereon, done under a contract with the owner.
16 Colo. App. 349Daly v. Concordia Fire Insurance (1901)
 Error to the District Court of Lake County.
16 Colo. App. 354Hardwick v. McClurg (1901)
 Appeal from the District Court of IR Paso County.
16 Colo. App. 365Keely v. East Side Improvement Co. (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 371People ex rel. Board of County Commissioners v. Myers (1901)
 Appeal from the District Court of Ouray County.
16 Colo. App. 375Dumars v. City of Denver (1901)
 Error to the District Court of Arapahoe County.
16 Colo. App. 406Borcherdt v. Favor (1901)
1. Mortgages — Pleading—Legal Conclusion. In an action to foreclose a mortgage evidenced by a deed to and title bond from the vendee, an allegation in the answer that the bond was not a mortgage was a legal conclusion. 2. Mortgages — Title Bonds — Foreclosure. Defendant executed to plaintiff his promissory note and at same time caused certain lands to be conveyed to plaintiff by a building and loan association to secure the note. Plaintiff executed to defendant a bond for title to the land conditioned upon the payment of the note and further conditioned that upon defendant’s failure to pay the note, plaintiff should be discharged from any liability to convey said land to defendant, or if she preferred might enforce the payment of the note, and it was further provided in the bond that if any proceedings in court should be necessary on tlie'foreclosure of the bond, plaintiff should recover a reasonable attorney’s fee. It appeared on the face of the papers that the note, deed and title bond were parts of one and the same transaction. Held that the deed and title bond were in effect a mortgage from defendant to plaintiff to secure the note, and in an equitable action for foreclosure it was immaterial that the grantee in the bond was not the same as the grantor in the deed. 3. Mortgages — Foreclosure—Pleading. In an action to foreclose a mortgage where the complaint alleged that defendant executed to plaintiff his note, and to secure the same caused certain land to be conveyed to plaintiff by a building and loan association, and that plaintiff executed to defendant a bond for title to the land conditioned on the payment of the note, an answer that denied that defendant made or executed to plaintiff any deed of conveyance of the land, and further averred that defendant had no title in or to the land, but that the entire title was vested in the building and loan association, and that plaintiff acquired title from said association, was not a denial that defendant caused the conveyance to be made to plaintiff, nor were the allegations of the answer inconsistent with the fact that even though the legal title may have been vested in the building and loan association, an equitable title was vested in defendant. 4. Mobtgages— Eobeclosube— Pleading— Evidence — Judgment on the Pleadings. In an action to foreclose a mortgage where the complaint alleged that defendant executed to plaintiff his note and caused certain land to be conveyed to plaintiff by a building and loan association to secure the note, and that plaintiff executed to defendant a title bond to said land conditioned upon the payment of the note, and the bond expressly gave plaintiff the right to enforce the payment of the note, and provided for the recovery of an attorney’s fee by plaintiff in case of legal proceedings to foreclose, an answer that admitted the execution of the note and that it was for the purchase price of the land, and admitted the execution of the title bond, and further alleged that about two years after the execution of the note and title bond, defendant caused to he executed to plaintiff a chattel mortgage upon certain personal property as collateral security for the debt, was an express recognition by defendant of the fact that the debt was absolute and could not be satisfied by a surrender of the premises by defendant, and that the bond was a mortgage and not a mere option given by plaintiff to defendant to purchase. Parol testimony was not necessary to determine whether the transaction constituted a mortgage, and such evidence would have been inadmissible and incompetent to show the contrary, and judgment for plaintiff on the pleadings was proper. 5. Mobtgages — Eobeclosube—Chattel Mobtgages — Pleading. In an action to foreclose a mortgage, an answer that alleged that defendant had caused to be executed to plaintiff a chattel mortgage on certain personal property as collateral security for the same debt, and that plaintiff had taken possession of said personal property and converted it to her own use, and claiming credit for the alleged value of the property in a greater amount than the credit given by plaintiff, constitutes no defense in the absence of an allegation that possession was wrongfully taken by plaintiff or of wrong or fraud in the sale of the property. In the absence of any allegation to the contrary, the presumption is that plaintiff rightfully took possession under the chattel mortgage. 6. Mobtgages — Eobeclosube—Subeendeb op Peopebty — Pleading. In an action to foreclose a mortgage, an answer and cross complaint alleging a parol agreement by plaintiff, supported by no new consideration, to accept a surrender of the mortgaged property in full satisfaction of the debt and alleging damages for failure to carry out such agreement, stated no defense to the action of foreclosure or cause of action against plaintiff. 7. Attobneys’ Fees — Costs—Pbactice. In an action to foreclose a mortgage which provided for a reasonable attorney’s fee to be taxed as costs in favor of plaintiff, it was not error to hear evidence as to the reasonable value of the services of plaintiff’s attorney after the court had sustained a motion for judgment on the pleadings in plaintiff’s favor. 8. Mobtgagbs — Eobeolositke—Pleading—Genebal Denial. An allegation in a complaint for foreclosure that for the purpose of securing the note., defendant at the time of its execution caused a conveyance of certain land to be made to plaintiff, being the same land described in a title bond from plaintiff to defendant, which the action sought to foreclose, was not controverted by a general denial in the answer in the form “ defendant denies each and every other allegation of the said complaint, except as herein expressly admitted, qualified or explained,” although there was no attempt to allege a confession and avoidance.
16 Colo. App. 416American Central Insurance v. Donlon (1901)
 Appeal from the District Court of El Paso County.
16 Colo. App. 423Columbia Building & Loan Ass'n v. Lyttle (1901)
 Appeal from the District Court of Rio Blanco County.
16 Colo. App. 429Wilson v. Union Distilling Co. (1901)
1. Referees — Discretion of Court. When the trial of an issue of fact requires the examination of any long account on either side, a reference may be ordered, but whether or not a case shall be sent to a referee is discretionary with the court. 2. Practice in Civil Actions — Pleading—Prayer for Relief. Where an answer has been interposed in an action, the relief which may be allowed is not dependent on the prayer of the complaint, but any relief may be granted consistent with the case made by the complaint and embraced within the issues. And if, under the pleadings and proofs, the plaintiff is entitled to a judgment at law, the fact that his prayer is, in form, for relief in equity is without significance. 3. Same — Referees—Accounting. Plaintiff alleged that defendant had collected a certain amount of money on accounts assigned to him under a written contract, whereby defendant was to pay over the amount collected to plaintiff, less his reasonable costs and charges, alleged what was a reasonable charge and prayed that defendant be compelled to account for the money collected, and that plaintiff have judgment for the amount less the reasonable costs and charges. Defendant alleged a contemporaneous parol agreement, whereby he was authorized to employ a collector at a certain salary and expenses, and that the payment of such salary and expenses together with defendant’s compensation had consumed the amount collected. Held that the action was one for trial by a jury and did not require a reference to a referee. 4. Pleading — Objections Waived. In an action to recover money collected by defendant for plaintiff, where the complaint alleged the amount not as upon plaintiff’s knowledge, but as in accordance with defendant’s statement and the allegation was not challenged in the trial court, as against an objection raised on appeal, plaintiff will be held to have adopted defendant’s statement so that the effect is the same as if directly alleged by plaintiff. 5. Evidenqe — Written and Parol Contracts. Evidence of a prior or contemporaneous parol agreement is never admissible to vary the terms of a valid written contract. 6. Same. In an action to recover money collected by defendant for plaintiff upon accounts assigned to defendant for that purpose by a written contract, wherein defendant agreed to pay the money over to plaintiff as collected after deducting his reasonable cost and charges, evidence of a contemporaneous agreement, whereby defendant was to employ a collector at a certain salary per week and expenses, to make the collections, was inadmissible in defense as it was in conflict with the written contract. 7. Evidence — Expebt Witnesses — -Customs. In an action to recover money collected by defendant, an attorney, under a contract wherein he was to turn over the money as collected to plaintiff less his reasonable cost and charges for making the collection, where an issue was made as to what was a reasonable charge for the services, other attorneys engaged in the business of collecting were competent expert witnesses to testify as to what was a reasonable charge, and it was admissible evidence for them to testify as to what was a customary charge for such services amongst attorneys doing that kind of business.
16 Colo. App. 436State Board of Land Commissioners v. Carpenter (1901)
1. State Board of Land Commissioners — Leasing School Lands —Mandamus. The action of the state board of land commissioners in leasing the state school lands involves no discretionary, political or governmental power of the executive department, and where the board leased certain mineral school land and afterwards wrongfully canceled the lease and executed a lease thereof to another party, an action of mandamus may be maintained against the board in favor of the former lessee to compel the cancellation of the latter lease and reinstatement of the former. 2. Same — Certiorari. Where the state board of land commissioners wrongfully canceled a lease of state school lands on the ground that the rent was delinquent, when in fact it was not, and executed a lease thereof to another party, the act was not judicial in its nature and is not subject to review on certiorari. Mandamus and not certiorari is the proper remedy to enforce the rights of the former lessee. S. Landlord and Tenant — Execution oe Contract — Possession. The taking possession of and occupying the demised premises of the lease by a lessee is an acceptance of the lease-and equivalent to an execution of the instrument itself, and a failure of the lessee under such circumstances to sign the lease does not invalidate the contract.
16 Colo. App. 441King Shoe Co. v. Chittenden (1901)
1. Sales — Attachment—Evidence. A merchant ordered a hill of goods but before delivery countermanded the order. By misunderstanding the goods were shipped but were set apart by the merchant and his clerks were directed not to use the goods. The agent of the shipper came and received the goods and made an effort to sell them to other parties but failed. He then left the goods with the merchant with the understanding that the revocation of the order had been accepted and that as soon as the agent could dispose of them the merchant would ship them to such point as the agent should direct. Before they were shipped they were attached by creditors of the merchant. Held that the title to the goods never vested in the merchant. And in a replevin suit by the shipper of the goods against the executor of the officer who attached the goods, the agent of the shipper was a competent witness.
16 Colo. App. 444Fraser & Chalmers v. Mines Leasing Co. (1901)
1. Corporations — Annual Reports — Liability op Directors. Where a foreign corporation filed with the secretary of state on February 20, 1896, its certificate appointing an agent and the other credentials required by statute to authorize such corporation to do business in this state, and on February 13, 1897, filed its annual financial report as required by section 491, Mills’ Ann. Stats., the corporation was not in default in the filing of such annual report, so as to make its directors personally liable for its debts. No such report was required to be filed within sixty days after the first day of January, 1896.
16 Colo. App. 446Buckeye Mining & Milling Co. v. Carlson (1901)
1. Mines and Mining — Contracts—Sinking Shaft. A contract for sinking a mining shaft recited that the mining company was the owner of a certain “ lode mining claim ” and “ now has upon said lode a shaft 115 feet in depth and desires to sink the same an additional depth of 110 feet.” Nothing further was said in the contract about sinking the shaft on the lode or vein. In an action on the contract for sinking said shaft, defendant set up as a defense that the shaft was not sunk all the way upon the vein, but departed from it. Held that the contract did not obligate plaintiff to sink the shaft on the vein, and that the meaning of the contract was that the shaft could be extended on the same course and in the same direction as the old one. 2. Appellate Practice — Findings of Fact. The appellate court will not reverse the judgment of the lower court upon a question of fact unless the finding of the lower court is manifestly against the weight of the evidence. 3. Contracts — Objections Waived. Plaintiff contracted to sink a mining shaft for defendant 110 feet. At the depth of seventy feet defendant settled with plaintiff, paying the entire amount then due. In an action on the contract for the balance when the shaft was completed, defendant claimed damages on the ground that when the shaft had been sunk eighteen feet it departed from the vein and continued thereafter in the country rock. Held that defendant by settling with plaintiff without objection when the shaft had reached a depth of seventy feet,-had placed a construction upon the contract that the shaft was not required to follow the vein, and was precluded from putting another and different construction upon it after the entire work was completed.
16 Colo. App. 449Morse v. Morrison (1901)
1. Landlord and Tenant — Lien for Rent. Section. 2854, Mills, Ann. Stats., giving to hotel and boarding house keepers and other persons a lien on the baggage and furniture of their guests and tenants for rent, does not give to the lessor of an office room a lien on his tenant’s furniture for the rent of the office. 2. Chattel Mortgages — Acknowledgment and Record. The failure to acknowledge and record a chattel mortgage does not invalidate it as between the immediate parties thereto. And third persons in whose favor it may be held void, must be persons having some right or interest in the property. 3. Chattel Mortgages — Landlord and Tenant. A lessor of an office room having no lien on his tenant’s furniture who took possession of such furniture for rent due, without taking any legal measures to have the property subjected to the payment of the debt, acquired no right or interest in the property as against the holder of a chattel mortgage that was not acknowledged and recorded. 4. Chattel Mortgages — Creditors—Landlord and Tenant. A lessor of an office room having no lien on his tenant’s furniture who took possession of such furniture for unpaid rent without the consent of his tenant and without the aid of any legal process was not a creditor or subsequent purchaser in good faith within the meaning of section 2027, Mills’ Ann. Stats. And the fact that one holding a chattel mortgage on such furniture from said tenant permitted the mortgagor to remain in possession thereof after the maturity of the mortgage debt, did not invalidate the chattel mortgage as between such mortgagee and lessor.
16 Colo. App. 453Mosier v. Kershow (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 458Robinson v. Bonjour (1901)
1. Replevin — Jurisdiction—Justice of the Peace — Judgments. A justice of the peace has no jurisdiction in a replevin suit where the value of the property involved exceeds $300, and his judgment in such suit is a nullity. 2. Same — Action on Replevin Bond. Where a replevin bond was given in an action before a justice of the peace conditioned for the return of the property if a return be adjudged and the judgment of the justice was that plaintiff have possession of the property, but the value of the property exceeding $300 the justice had no jurisdiction to render a judgment therein, no action will lie upon the replevin bond for a failure to make return of the property involved in the replevin suit.
16 Colo. App. 459Beach v. Bennett (1901)
1. Bills and Notes — Consideration. Defendant executed a promissory note secured by deed of trust without any consideration passing from the payee. The note was never delivered to the payee but was indorsed by him without recourse and left with defendant. Afterwards defendant borrowed money from plaintiff and indorsed a credit on the note to make the amount of the note correspond to the sum borrowed, and delivered the note and deed of trust to plaintiff. In an action to recover the balance of the note after foreclosure of the deed of trust, the fact that no consideration passed between the original payee and defendant was no defense as against plaintiff. 2. Bills and Notes — Delivery After Maturity of Interest. Where defendant executed a promissory note with interest coupons attached, and the note provided that upon default of payment of any interest coupon when due, the payee might proceed to collect both principal and interest, but no consideration passed from the payee and the note was never delivered to him but was indorsed by him and left with defendant, which she afterwards delivered to plaintiff for money borrowed, the fact that an interest coupon had matured and was not paid at the time the note was delivered to plaintiff was not available as a defense in an action by plaintiff upon the note so as to admit of any equitable defense the defendant might have against the original payee. 3. Bills and Notes — Indorsement without Recourse. An indorsement of a promissory note by the payee “ without recourse ” cuts off defenses of the maker as effectually as if the indorsement had not been qualified. 4. Bills and Notes — Counterclaims—Limitation—Mutual Accounts. In an action upon a promissory note, defendant set up a counterclaim, consisting of an account for board and for care and attention at different times, some of which accrued more than six years prior to the time of instituting the suit. Held that there was no mutuality of accounts between the parties so as to bring the counterclaim within the rule that items within six years draw af ter them other items beyond that period. And that plaintiff might successfully set up the statute of limitations against all items of the counterclaim that accrued more than six years prior to bringing the suit.
16 Colo. App. 464Flint v. Hubbard (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 468First National Bank v. Wyman (1901)
 Error to the District Court of Mesa County.
16 Colo. App. 474Rosengrave v. Clelland (1901)
 Appeal from the County Court of Fremont County.
16 Colo. App. 475Mann v. People (1901)
1. County Couets — Jubisdiotion—Mandamus. The county court is a court of record and has jurisdiction to issue the writ of mandamus. 2. Justice of the Peace — Teems of Couet — Adjouenmbnt. A justice’s court is open for business every day except Sundays and holidays, and its adjournment sine die or otherwise on one day does not incapacitate it from issuing writs or conducting trials on the next day or any day thereafter. 3. Justice of the Peace — Judgments—Commitment. The judgment of a justice of the peace convicting a party and sentencing him to confinement in the county jail does not become void because he failed to issue a writ of commitment on the day of its rendition. The judgment can only be satisfied by the imprisonment of the party for the term for which he is sentenced. 4. Same — Mandamus. Where a justice of the peace tried and convicted a defendant and sentenced him to imprisonment in the county jail, his duty to issue a writ of commitment was mandatory, and upon his refusal to issue such writ when demanded, mandamus would issue to compel him to issue the writ. And it was immaterial that time had elapsed ■ since the sentence and before the writ was demanded, exceeding the length of the term of sentence.
16 Colo. App. 478Colorado School Land Leasing & Mining Co. v. Ponick (1901)
1. Corporations — Assignment oe Claim — Description. An assignment of a claim against The Colorado School Land Leasing and Mining Company in which assignment the words were trans- . posed and the claim described as against The Colorado School Land Mining and Leasing Company was a sufficient description to identify the claim, and the assignment was not invalid because of such mistake in the name of the corporation. 2. Employer and Employ^ — Wages—Splitting Demands — Reducing Amount. A creditor may not split up his demand so as to make several causes of action out of one without the consent of his debtor, but he may abate a portion of his claim without asking his debtor’s permission. And where an employe assigned his wages for a month, stating the amount and that it was all that was owing to him, the employer cannot object to the assignment on the ground that the amount assigned was less than the amount due the assignor. 3. Evidence — Receipts. A receipt for money due is only prima facie evidence of payment and may be contradicted by parol. 4. Employer and Employé — Wages—Loan to Manager — Evidence. Where employés of a corporation were informed by the company’s manager that the money had not come to pay them, and that if they would wait a few days they should receive their pay with interest, which proposition the employés accepted, and afterwards at different times payment was promised by officers of the company, it was not a loan of their wages to the manager, but an extension of time to the company for payment. 5. Appellate Practice — Credibility of Witnesses — 'Verdict op Jury Conclusive. Where witnesses contradict each other, the question of their credibility is for the jury to determine, and the verdict of the jury is conclusive on the appellate court.
16 Colo. App. 483Bear v. Hansen (1901)
Chattel Mortgage — Duty of Mortgagee to Take Possession After Maturity — Laches—Replevin. Defendant held a chattel mortgage on a horse which authorized the mortgagor to retain possession until the debt matured. Nineteen days after the debt matured. the mortgagor, being in possession, sold the horse, and two months thereafter his vendee sold it to plaintiff. Plaintiff put the horse in defendant’s livery stable, and defendant retained possession, claiming title under his chattel mortgage. Defendant offered no valid excuse for his delay in taking possession. Held that defendant by his unnecessary delay in taking possession after the maturity of his debt forfeited his right as against plaintiff, and that plaintiff by replevin might recover the horse with damage for its retention.
16 Colo. App. 485Flick v. Hahn's Peak & Elk River Canal & Placer Mining Co. (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 494Benson v. Eli (1901)
1. Pleading — Tboveb—Fbaud and Deceit. An allegation of fraud and deceit is material to justify an execution against tlie person, but is not essential to a cause of action in trover. 2. Tboveb and Oonvebsion — Title to Stolen Money — Identity. Where a person was robbed of certain money and upon arrest of the robber the officer recovered most of the money, the money so recovered while in the hands of the officer was not in the channels of trade so as to exempt it from the rule that “except by a sale in market overt, no one can give a better title to personal property than he has himself.” And the attorney for the robber having obtained a judgment for his fees and part of the money being paid over to him on execution, he acquired no better title than the judgment debtor had, and an action of trover would lie against the attorney by the person from whom the money was taken, and if he could show that the money seized on execution by the attorney or any part of it was the identical money taken from him by the robber, he was entitled to recover to the amount so identified. 3. Same — Instbuctions. Where a person was robbed of certain money and upon the arrest of the robber part of the money was recovered by the officer, part of which was paid over to the attorney of the robber on an execution against the robber for his fees, in an action by the party robbed against the attorney to recover the money, the question of the identity of the money was a question of fact for the jury, and it was error for the court to assume in his instructions that the money in the hands of the officer was the identical money taken from plaintiff. 4 Same. Where a person was robbed of certain money and upon the arrest of the robber most of the money was recovered by the officer, and the attorney for the robber having assigned part of his fees recovered a judgment against the robber for the balance, and his assignees recovered judgments for the amounts assigned, and executions having been issued on the judgments the money was paid over to the several judgment creditors, in an action by the person robbed against the attorney to recover the money, defendant was only liable for the amount shown to have been converted by him, and where there was no evidence that defendant received or converted the amount paid to his assignees, it was error to instruct the jury that in the event of a verdict for plaintiff it must be in the sum of the amounts paid to defendant and his assignees. It was also a question for the jury to determine whether all or part of the money paid on the executions was the money taken from plaintiff. 5. Instructions not Applicable to Evidence. It is error to give an instruction where there is no evidence in the case to which it is applicable. 6. Evidence — Offers of Compromise. Evidence of offers of compromise if objected to in apt time and in the proper manner is inadmissible. 7. Pleading — Description of Money. In an action of trover to recover money alleged to have been taken from plaintiff by robbery and to have been received and converted by, defendant, a description in the complaint of the money as “ lawful money of the United States, bank notes and other current bills, the particular description and denominations of which are to this plaintiff unknown,” and giving the value, is sufficient.
16 Colo. App. 498National Bank of Commerce v. Graham (1901)
1. Assignment for Benefit of Creditors — Assent of Refusal of Creditors — Knowledge of Assignment. Where an assignment is made for the benefit of all the creditors of the assignor, the right of any creditor to participate in the benefits of the assignment depends upon his assent to such assignment, and his refusal to assent thereto may be inferred from his acts, but such inference can be drawn only from acts of the creditor done with the knowledge that an assignment had been made, or at least that it was in contemplation. 2. Same — Attachment. The levying of an attachment by a creditor upon the property of his debtor after the debtor had made an assignment for the benefit of all his creditors, would not be sufficient to deprive such creditor of the right to participate in the benefits of the assignment if the attachment was levied without any knowledge of the assignment by the creditor. 3. Same. Where a creditor, without any knowledge of the assignment, levied an attachment upon the property of his debtor after the debtor had made an assignment for the benefit of all his creditors, such attaching creditor is not required to release his attachment lien thus innocently acquired before he can present his claim and have it allowed by the assignee.
16 Colo. App. 505Board of Public Works of Denver v. Denver Telephone Co. (1901)
Appellate Practice — Jurisdiction—Law of the Case. Where a ease was transferred from the court of appeals to the supreme court and the supreme court in remanding the case to the court of appeals for want of jurisdiction, passed upon and determined the merits of the case, such ruling of the supreme court is decisive of the case in the court of appeals.
16 Colo. App. 506Bruce v. Endicott (1901)
1. Justice of the Peace — Appointment of Special Constable— Pbesumption. The fact that there is no legally elected constable in the precinct is a matter presumably within the knowledge of the justice of the peace and will authorize the appointment of a special constable by the justice. 2. Justice of the Peace — Special Constable — Appointment without Seal Invalid. The statute authorizing the appointment of a special constable by a justice of the peace requires the appointment to be by a written indorsement under the seal of the justice on the back of the process to be served, and an appointment not under seal and without any scroll for seal attached to the signature of the justice was invalid, and the service of process by such special constable was void.
16 Colo. App. 509Jamieson House Furnishing Co. v. Brainard (1901)
 Appeal from the District Court of Las Animas County.
16 Colo. App. 513Board of County Commissioners v. Adams (1901)
1. Practice — Juries—Regular Panel — Open Venire — Presumption. Where a party in district court asked for a jury from the regular panel and none such being in attendance, a jury was offered to be brought in by open venire which was declined by the party and the case was set for trial over the protest of the party, on appeal in the absence of a showing to the contrary it will be presumed that the contingency existed, authorizing the court to cause a jury to be summoned by open venire. 2. Practice — Preparation for Trial — Continuance. An objection that a party was forced to trial before he was prepared for it, is without force in the appellate court, where there was no attempt at a showing why the party was not prepared, no suggestion of surprise and no application for a continuance. 3. Evidence — Claim Against County — Parties. On appeal to the district court from an order disallowing a claim for care and custody of an insane person, it was not error to admit in evidence the order of the county court committing the person to the sheriff of the county, on the ground that the claim was presented to the board in the individual name of plaintiff, where it appears that the sheriff and plaintiff are one and the same person. 4. Insane Female — Custody—Statutory Construction. The statute requiring that a female lunatic, in the absence of some member of her family, shall be accompanied to the insane asylum by a female attendant does not require the county court to commit such female patient to a female custodian when retained in the county of her commitment, and the county court has authority to commit such patient to the custody of the sheriff.
16 Colo. App. 516Board of County Commissioners v. White (1901)
 Appeal from the District Court of Garfield County.
16 Colo. App. 520Lexington Gold Mining Co. v. Jefferson Mining Co. (1901)
1. Contracts — Conveyances—Specific Performance — Mines and Minino. An agreement to convey a certain described part of a mining claim, which required a simple conveyance of the land without exception or reservation, was not complied with or satisfied by the tender of a deed containing reservations and conditions as to the rights of the contracting parties to follow the dip of veins involved. 2. Conveyances — Delivery—Acceptance—Authority of Attorney to Bind Client. An attorney at law merely by his employment as legal adviser is not authorized to accept for his client a deed. And where in performance of a contract to convey part of a mining claim, the grantor executed to the grantee, a deed which was delivered to and accepted by the attorney for the grantee, with the statement that it would be accepted by his client, but when the deed was presented by the attorney to his client it was promptly rejected on the ground that it did not comply with the agreement to convey, the acceptance by the attorney was not binding on his client, and there was no acceptance of the deed by the grantee.
16 Colo. App. 526Blyth v. People (1901)
1. Motion — Notice—Waiver. Where a party against -whom a motion was made in a cause, was present in person and by attorney at the hearing of the motion, and his attorney was heard in his behalf, he waived the objection that no notice of the motion was served upon him. 2. Practice — Pleading—Departure—Waiver. If the allegations of a replication constitute a departure from the complaint, objection should be raised by motion to strike out such allegations. By failing to raise such objection by motion to strike, and by withholding the objection until the trial, the objection is waived. 3. Pleading — Costs — Compensation of Custodian — Order of Court — Evidence. Where a sheriff levied an execution on perishable property and appointed a custodian and in his return fixed the compensation of the custodian, which on motion to retax was reduced and fixed at a smaller sum by order of the court, in an action against the sheriff and the sureties on his bond to recoverthe balance, it was not necessary to specially plead the order of court fixing the compensation, but was sufficient to allege what the taxable costs were by stating the amount, and the order of court was admissible in evidence to prove the allegation. 4. Costs — Executions—Compensation of Custodian. Where an execution is levied on personal property and a custodian is appointed to take charge thereof, the compensation of such custodian must be allowed by the court, and is limited to $2.50 per day. Compensation of a custodian fixed by the sheriff is not taxable as costs in the case. 5. Same — Action upon Sheriff’s Bond — Evidence. In an action upon a sheriff’s bond to recover money collected by him upon an execution, where the answer admitted the levy and the amount the property was sold for, and the only issue was as to the amount of compensation of a custodian to be taxed as costs, an order of court fixing the compensation of such custodian and requiring the sheriff to pay the balance to the judgment plaintiff was conclusive upon the sureties on the sheriff’s bond, and it was no defense to show that the custodian was the purchaser, and that the purchase price only paid the sheriff’s cost and amount allowed the custodian by the sheriff, and that the sheriff received no money from the purchaser.
16 Colo. App. 532Crawford v. Birkins (1901)
 Appeal from the District Court of Clear Creek County.
16 Colo. App. 537Dean v. Hipp (1901)
 Appeal from the District Court of Arapahoe County.
16 Colo. App. 540Long v. McGowan (1901)
Pbactioe — Pleading—Ceoss Complaint — Dismissal. Where an action was brought against two defendants and one of the defendants filed what was termed a cross complaint against his codefendant but which alleged no claim or cause of action against the plaintiff, and the other defendant demurred to the complaint which was sustained, and the plaintiff declining to amend, the action was dismissed, held that a dismissal of the complaint was a dismissal of the whole case, and that a defendant cannot by a cross complaint against his codefendant prevent a dismissal of the case by plaintiff.
16 Colo. App. 542Aliunde Consolidated Mining Co. v. Arnold (1901)
 Appeal from the District Court of Clear Creek County.
16 Colo. App. 549Chittenden v. Charles H. Sieg Manufacturing Co. (1901)
1. Chattel Hobtgages — Attachment— Fbaudulent Repbesenta-TIONS — BUBDEN OF PBOOF. Where attaching creditors attempt to avoid a prior chattel mortgage on the ground that they were induced to give credit by fraudulent misrepresentations of the mortgagee as to the financial condition of the mortgagor, the burden is on them to prove the fraud. 2. Same — Evidence. Where attachment creditors attempt to set aside a prior chattel mortgage on tiie ground that they were induced to give credit by fraudulent misrepresentations of the mortgagee as to the mortgagors’ financial condition, a letter from the mortgagee to a mercantile agency which stated that mortgagee had done a large business with mortgagors amounting to many thousand dollars during the previous year and found them good pay, that the business had been on a cash basis or very short time, although mortgagee’s terms were sixty days, is not shown to be false by the fact that at the end of the year referred to, a balance of 11,300 was due from mortgagors to mortgagee out of a total business of 140,000. 3. Same. Where attachment creditors attempt to avoid a prior chattel mortgage on the ground that they were induced to give credit by fraudulent misrepresentations by the mortgagee as to the financial condition of the mortgagors, a letter from mortgagee to a mercantile agency stating that the mortgagors were good pay is not shown to be false and fraudulent by showing that noarly three months after the letter was written to the agency, mortgagee’s factory declined to fill an order from mortgagors until a remittance was received on account, where the refusal to fill the order was without the knowledge of the president of mortgagee company', who wrote the letter to the agency, and where said president directed said order to be filled as soon as he heard of it. 4. Fbaud — Evidence—Question foe Jubt. As a general rule, fraud is a question of fact to be determined by the jury, but where the alleged fraud consists in written statements and there is no evidence to show that the statements are false, there is nothing for the jury to pass upon and the court should direct a verdict.
16 Colo. App. 554Breckenridge Mercantile Co. v. Bailif (1901)
 Appeal from the District Court of Summit County.