Volume 17 — Colorado Court of Appeals Reports

<p>Corporations — Failure to File Annual Report — Liability of Directors — Limitation.</p> <p>The liability of directors of a corporation, under section 491, Mills’ Ann. Stats., for failure to file the annual report as therein required is a statutory penalty and is barred by the statute of limitations one year after the penalty is incurred, and the statute begins to run at the time of the default of the directors and not at the time the debt against the corporation matures or is made payable.</p>

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

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

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

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

<p>1. Evidence — Correspondence.</p> <p>In an action upon a contract for the sale of cattle where defendant denied the execution of the contract and also the ownership of the cattle, letters of a correspondence between defendant and plaintiff relative to the place of delivery of the cattle in which defendant proposed a different place than the one named in the contract, were admissible in evidence to show the recognized relations existing between the parties at the time they were written.</p> <p>2. Same.</p> <p>Where the letters of a correspondence between plaintiff and defendant were introduced in evidence to show that defendant recognized his liability under a contract, all the letters of the correspondence, including those written by plaintiff as well as those written by defendant, were admissible.</p> <p>3. Pleading — Evidence—Damages.</p> <p>In an action for damages for the failure of defendant to deliver cattle according to his contract of sale, a complaint which set forth in a general way the expense and loss to plaintiff, might have been required to be made more specific upon motion, but, in the absence of such motion, evidence that plaintiff had paid out money for pasture on which to put the cattle when gathered and employed men to assist in searching the range for them, and that such expense was incurred by agreement with defendant’s agent who represented defendant in the sale, was admissible.</p> <p>4. Principal and Agent — Contracts—Estoppel.</p> <p>Where plaintiff entered into' a written contract with an agent of defendant for the purchase of cattle, and defendant received a copy of the contract in which the agent described himself as the agent of defendant, and also received an advance payment on the cattle, which he retained, and afterwards accepted payment for some of the cattle delivered under the contract, defendant is estopped to deny that the person assuming to act as his agent was authorized to do so.</p> <p>5. Same — Disclaimer of Ownership.</p> <p>Where plaintiff purchased cattle from an agent of defendant as belonging to defendant, and defendant accepted and retained money that was paid as part of the purchase price he cannot evade liability on his contract for a failure to deliver the cattle as agreed, by disclaiming ownership of the cattle.</p>

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

<p>1. Practice — Trials—Discretion of Court — Reading Pleadings to Jury — Harmless Error.</p> <p>The details of the trial are largely within the discretion of the court, and it is not an abuse of that discretion to permit a defendant to read the pleadings to the jury where it does not appear that plaintiff was harmed by such reading.</p> <p>2. Same — Objections.</p> <p>Where the defendant, in his opening statement, read to the jury the complaint and answer, if the plaintiff objected to the reading, he should have made his objection before the complaint was read. After the complaint was read to the jury, common fairness required the reading of the answer, and an objection to its reading was properly overruled.</p> <p>3. Practice — Objections.</p> <p>An objection to the reading of a pleading to the jury without stating a reason for the objection is worthless, and it is not error to overrule it.</p> <p>4. Contracts — Oral Evidence to Impeach Written Contract.</p> <p>Evidence of conversations between the contracting parties-prior to and pending the execution of a written contract is admissible in evidence, where such evidence has no reference to the contents of the written contract, but its purpose is to impeach it.</p> <p>5. Evidence — Immaterial—Harmless.</p> <p>The admission of immaterial evidence is not reversible error if such evidence is harmless.</p> <p>6. Bonds — Sureties—Guaranties.</p> <p>An oral guaranty, given by the obligee in a bond to a surety on the bond to induce the surety to sign the bond, is not void.</p> <p>7. Same — Promise to Answer Debt of Another.</p> <p>Where plaintiff, who held a bill of sale to certain cattle, transferred the bill’ of sale in consideration of the. conveyance to him of real estate, and took a bond from the grantors to satisfy an incumbrance on the real estate, and in order to induce defendant to sign the bond as a surety, represented to defendant that he was the owner of the cattle and had left them in the possession of the party who executed the bill of sale, and offered to assign the bill of sale to defendant, so that he might protect himself, and gave defendant his oral personal guaranty that the cattle were as he had represented them, and would be turned over when called for, the guaranty was an original contract and not a promise to answer the debt of another, and in an action by plaintiff upon the bond a failure of plaintiff’s guaranty was a valid and good defense.</p> <p>8. Bonds — Sureties—Guaranties—Fraud—Instructions.</p> <p>In an action upon a bond where the surety defended by-alleging that he was induced to sign the bond by the personal guaranty of plaintiff of the existence of certain facts which would protect defendant from liability, and alleging a breach of the guaranty, the court properly refused an instruction on the question of fraudulent representations, although the instruction was a correct statement of the law in cases where relief is sought on that ground.</p> <p>9. Same — Statu Quo.</p> <p>In an action against a surety on a bond, the defendant alleged that he was induced to sign the bond as a surety by the personal guaranty of plaintiff that he was the owner of certain cattle to-which he held a bill of sale, and which bill of sale he assigned to defendant, and alleged a breach of the guaranty. The evidence showed that the bill of sale had been lost. Held, that an instruction requested by plaintiff that, to enable defendant to avail himself of the ■ defense of failure of consideration, he must return the bill of sale, was properly refused.</p> <p>10. Same — Enquiry.</p> <p>In an action by the obligee against a surety on a bond where defendant alleged that he was induced to sign the bond by the personal guaranty of plaintiff that he was the owner of certain cattle to which he held a bill of sale and which bill of sale he assigned to defendant, it was not incumbent on defendant to make any enquiry as to the truth or falsity of plaintiff’s statements, and an instruction requested by plaintiff, that if defendant could have protected himself against the false representations of plaintiff by ordinary care and prudence he could not avail himself of the defense of fraud, was properly refused.</p>

<p>1. Conveyances — Vendors’ Liens.</p> <p>Where one person conveys real estate to another in such manner that the legal title vests in the latter, and the consideration of the sale is not paid or secured, equity allows the grantor a lien upon the land for its payment.</p> <p>2. Contracts — Conveyances—Vendors’ Liens.</p> <p>A land owner contracted with two other parties to sell certain land at a fixed price to he paid by them to him in installments at fixed times. The two parties were to have control and handling of the land, and were to plat it and expend not to exceed a certain sum in preparing it for sale as an addition to the city. The amount thus expended to be deducted from the proceeds of the first sales, and to be equally borne by the three parties. The owner agreed to execute deeds to purchasers of parcels of the land and to hold the securities arising from such sales until he was paid the agreed price. All proceeds of sale over and above the stipulated price to be equally divided between the three parties. Held, that the contract was not a sale of land by the owner to the two parties such as would give the owner a vendor’s lien on the land for the purchase price, and an assignee of the interest of the owner in the contract acquired no such lien.</p> <p>3. Same.</p> <p>Where a land owner entered into a contract with two.other parties, whereby the two were to plat the land into a city addition and sell the same, the owner to malre deeds to the purchasers, and after paying the owner a stipulated price, the remainder of the proceeds of sale to be equally divided amongst the three, there could be no vendor’s lien in favor of the owner alone for the unpaid purchase price of any lot or parcel of land sold under the terms of said contract.</p>

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

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

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

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

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

<p>1. Water Rights — Conveyances.</p> <p>A water right, even though it may he appurtenant to land, is the subject of property, and may be conveyed with or without the land.</p> <p>2. Same — Mortgages—After Acquired Water Rights.</p> <p>A deed of trust conveying land together with all ditches and water rights thereunto belonging without any specific mention or description of the ditch or water right, does not convey an after acquired water right and ditch not in existence at the time the trust deed was executed.</p> <p>3. Same — Appurtenances.</p> <p>Plaintiff took a deed of trust conveying certain land, together with all ditches and water rights thereunto belonging. After-wards the grantor constructed a ditch and used the water therefrom at all times in irrigation of the land conveyed by deed of trust to plaintiff. About the time the ditch was completed the grantor executed to defendant a deed of trust to land adjoining that conveyed to plaintiff and in the deed of trust conveyed the ditch by particular description, and the water right thereby acquired. Defendant had no notice of any intention on the part of the grantor to appropriate and use the water so as to become an appurtenant to the land conveyed by the first deed of trust. Held, that the ditch and water right did not become an appurtenant to the land on which the water was used so as to vest in plaintiff, but that the express conveyance thereof to defendant vested in defendant the superior title.</p> <p>4. Mortgages — Application for Loan — After Acquired Water Right — Notice.</p> <p>Where a deed of trust conveyed land together with all ditches and water rights thereto belonging without any specific mention of an after acquired water right and subsequently constructed ditch, statements made in an unrecorded application for the loan or to the mortgagee in reference to such ditch and water right could have no force or effect against a subsequent mortgagee to whom the ditch and water right were expressly conveyed by deed of trust where said second mortgagee had no knowledge of such statements.</p>

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

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

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

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

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

<p>1. Appellate Practice — Bills of Exception — Motion to Strike.</p> <p>Motions to strike out bills of exception should be promptly made. Where a bill of exceptions was filed September 16, abstract September 23, and appellant’s brief November 3, a motion to strike the bill of exceptions filed December 4, came too late, and will not be considered.</p> <p>2. Claims Against County — Elections—Printing Notice, Ballots and List of Nominations.</p> <p>A county is liable for the reasonable value of printing official ballots, election notices and list of nominations, under the election law.</p> <p>3. Same — Pleading—Illegality of Contract.</p> <p>In an action against a county upon a bill for printing official ballots, election notices and list of nominations, done at the request of the county, defendant cannot question its liability on the ground that no appropriation was made therefor prior to contracting the debt, unless such defense be specially pleaded and proved.</p> <p>4. Evidence — Public Printing — Opinion of Witness — Cross-Examination.</p> <p>In an action against a county for the reasonable value of printing official ballots, election notices and list of nominations, where a witness testified, giving his opinion as to the value of the work, it was error to refuse the defendant permission to cross-examine such witness as to the amount of labor and material which went into the work.</p>

<p>1. Pleading — Practice—Trespass—Motion to Make More Specific.</p> <p>Where a complaint against several defendants charged them with acting jointly in the commission of certain trespasses, either through themselves or others, plaintiff was not required to set out the evidence hy which the ultimate facts were to be proven, and a motion should not he sustained to require the complaint to he made more specific because it did not designate the particular wrongful act done hy each defendant, nor because it failed to allege a conspiracy between the defendants to do the acts charged, nor because it failed to allege that certain individuals who were alleged to have committed acts of trespass were agents of defendants in so acting.</p> <p>2. Same — Corporations.</p> <p>Where a complaint charges a corporation with the commission of a trespass, a motion should not he sustained to require the complaint to he made more specific because it fails to allege through what particular officers, agents or employees of the corporation the trespass was committed.</p> <p>3. Pleading — Practice—Redundant Matter — Motion to Strike. Where a complaint contains redundant matter, advantage</p> <p>cannot he taken thereof on motion to require the complaint to he made more specific, but the proper remedy is hy motion to strike out.</p>

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

<p>1. Appellate Practice — Instructions—Exceptions.</p> <p>If instructions to a jury embrace distinct legal propositions, and any one of the propositions is sound, such instructions can not be reviewed by the appellate court upon a general exception to the charge, but if the charge is wholly bad or embraces but a single legal proposition, a general exception is sufficient, and special exceptions are unnecessary.</p> <p>2. Principal and Agent — Notice.</p> <p>Notice received "by an agent affecting the business he is authorized to transact while he is engaged in its transaction is notice to his principal.</p> <p>3. Principal and Agent — Ratification.</p> <p>Knowledge of all the material facts is essential to the ratification by a principal of the unauthorized acts of an agent.</p> <p>4. Same — Purchase and Sale of Goods by Agent.</p> <p>"Where defendant, a married woman who owned a drugstore conducted_ by her husband as her manager, in person notified plaintiff, a wholesale drug company, through its traveling salesman, that she would not purchase any goods from plaintiff, and afterwards the same salesman sold and delivered to her husband as her manager certain bills of goods, if defendant had no knowledge of the purchase of the goods by her husband, nor of the delivery thereof at the drugstore, nor of the sale thereof and receipt of the proceeds for her by her employees, there could be no ratification by her, and without a ratification there was no sale to her, and an action against her upon a contract for goods sold and delivered must fail.</p> <p>5. Principal and Agent — Sales—Ratification—Instructions,</p> <p>In an action for goods sold to defendant’s unauthorized agent in several different bills evidenced by orders made at different times by the agent, an instruction that an appropriation by defendant of any portion of the articles purchased would render defendant liable for the whole, was erroneous. An appropriation of the goods or a portion of the goods purchased under one order or contract would not be a ratification of a purchase under an entirely separate and different contract.</p> <p>6. Principal and Agent — Sales—Authority of Agent — Ratification.</p> <p>In order to recover for goods sold to defendant’s agent after defendant had notified plaintiff that she would buy no goods from it, it must be shown either that the goods were purchased by defendant’s authority or that she ratified the purchase with full knowledge of the facts.</p>

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

<p>1. Homesteads — Execution Liens.</p> <p>Where an execution was sued out and levied upon real estate prior to the designation of the real estate as a homestead hy the execution defendant, the execution lien is superior to the homestead claim.</p> <p>2. Executions — Levy upon Real Estate.</p> <p>Where a sheriff, upon receipt of an execution, made out and published in a newspaper a notice of sale of certain real estate under the execution, in which the execution was described, and it was stated that he had levied upon the real estate as the property, of the execution defendant, and filed a copy of such notice with the clerk and recorder of the county, it was a legal and valid levy.</p>

<p>Bills and Notes — Trust Deeds — Unauthorized Foreclosure — Purchaser with Notice.</p> <p>Where the payee of a note secured hy a deed of trust transferred the note before maturity, and afterwards through fraudulent representations obtained from the holder posession of two unpaid interest coupons cut from said note and without the knowledge or consent of the owner of the note the trustee proceeded to foreclose the deed of trust for the default in payment of the two interest coupons and at the sale the property was bought by said payee the foreclosure was a nullity and a purchaser from said payee, with knowledge of the facts, acquired no title as against the holder of the note and cannot object to a foreclosure of the deed of trust hy the legal holder of the note.</p>

<p>1. Appellate Practice — Assignments of Error — Evidence.</p> <p>A general assignment of error of the admission of improper evidence and the exclusion of proper evidence that fails to direct the attention of the appellate court to any specific testimony either admitted or excluded cannot be considered.</p> <p>2. Bills and Notes — Bona Fide Purchaser-r-Failure of Consideration.</p> <p>A failure of consideration is no defense to an action on a negotiable promissory note in the hands of one who purchased it before maturity for a valuable consideration and without notice of- any equities in favor of the payee.</p> <p>3. Appellate .Practice — Instructions—Harmless-Error.</p> <p>■ W}iere-the facts, are such! that .the "trial court' should have directed the verdict that was returned, had he been' requested to do so, errors in the instructions given are immaterial;’ and will •not be considered on appéal.</p>

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

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

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

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

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

<p>1. Appellate Practice — Verdict—Conflicting Evidence.</p> <p>A verdict of a jury upon conflicting testimony is conclusive on the appellate court where there is sufficient evidence to support the verdict and it is not manifestly contrary to the weight of the testimony.</p> <p>2. Negligence — Personal Injuries — Excessive Damage.</p> <p>In an action against a town for damage for personal injuries, where plaintiff, before the injury, was a strong, healthy woman, earning from $1 to $1.50 per day from her work, and by the injury she was rendered unfit to perform her ordinary work and is unable to earn anything, a verdict for $2,000 will not be held excessive.</p> <p>3. Practice — Evidence—Objections.</p> <p>Objections to the admission of evidence without assigning any reasons therefor do not entitle a party to have such objections considered.</p> <p>4. Evidence — Admissions—Not Prejudicial.</p> <p>In an action against a town for injuries caused by a defective sidewalk, the admission in evidence of a conversation had with the mayor, wherein he admitted that he had known of the defect for a long while prior to the accident, and had directed it to be repaired, was not prejudicial where the evidence, outside of the conversation, was amply sufficient to charge the town with notice of the defective condition of the sidewalk.</p> <p>5. Negligence — Cities and Towns — Defective Walks — Notice— Evidence.</p> <p>In an action against a town for injuries from a fall occasioned by a loose plank in the sidewalk where the evidence located the exact defect that caused- the injury, it was then competent, in order to prove notice to defendant, to show that similar defects existed in the immediate vicinity of the place where the accident occurred.</p>

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

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

<p>Parties — Mandamus—Cities and Towns.</p> <p>Where the fire and police board of the city of Denver, by resolution which was duly recorded, appointed plaintiff a patrolman, and afterwards his name was erased from the record and another substituted, in an action of mandamus by plaintiff against the city and the fire and police board to compel the restoration of the record of the resolution of his appointment, the person whose name was substituted in the record was not a necessary or proper party to the proceeding.</p>

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

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

<p>1. Trover — Possession—Title.</p> <p>To sustain an action of trover there must be in plaintiff at the time of the supposed conversion a lawful possession, or the right to immediate possession. There must he an invasion of a legal, as contradistinguished from an equitable, right. There can he no conversion of property, the title to which consists only in the right at some future time to acquire it by purchase.</p> <p>2. Corporations — Stockholders—Right to Purchase Stock— T rover.</p> <p>The right of a stockholder to purchase a certain proportion of a certain amount of stock to be sold by the corporation does not give the stockholder a right to any specific shares of stock, and would not support an action in trover against another stockholder, who purchased more than his proportional part of the stock, for the excess of stock so purchased.</p> <p>3. Same — Pleading.</p> <p>In an action by one stockholder against another, a complaint which alleged that the corporation had a certain amount of capital stock for sale of which each stockholder had a right to purchase a part in proportion to the stock held by him, and that defendant caused to be issued and sold to himself a large number of shares in excess of his proportional part, but which failed to show that defendant had not acquired a right to such excess by purchase from some other stockholder or otherwise, is insufficient to allege a wrongful conversion of the stock by defendant.</p> <p>4. Same. In an action by one stockholder against another a complaint which alleges that the corporation had a certain amount of capital stock for sale, of which each stockholder had a right to purchase a part in proportion to the amount of stock held by him, but that defendant caused to be issued to himself a large number of shares in excess of the number he was entitled to purchase, and thereby plaintiff was unable to obtain the stock he was entitled to, although he was at all times ready, able and desirous to subscribe and pay for tbe same, but which fails to allege that he ever offered to subscribe for the same and was refused, and which fails to show what disposition was made of the balance of the stock which was more than sufficient to have supplied plaintiff, is insufficient' to state a cause of action against any person as the allegations are entirely consistent with a forfeiture or abandonment of his right to purchase.</p> <p>5. Corporations — Stockholders — Right to Purchase Stock — ' Waiver.</p> <p>Where a stockholder of a corporation having a right to purchase a proportional part of stock offered for sale by the corporation fails to assert his right within a reasonable time, he will be deemed to have abandoned his right.</p> <p>6. Corporations — Stockholders—Preference Right to Purchase Stock.</p> <p>The original stockholders of a corporation have a preference right to purchase the original stock of the corporation which remains untaken at the time of the incorporation, or new stock in case of an increase of the capital stock, pro rata, according to the amount of stock held by each stockholder, but such preference right does not extend to capital stock which has been issued and paid for and retransferred by the stockholders to the corporation as part of its general assets.</p> <p>7. Same.</p> <p>Where the stockholders of a corporation transferred to the corporation to be used as general assets part of the stock held by them, the fact that the officers of the corporation reported such stock as unissued stock could not change its character from issued to unissued stock so as to give to the stockholders a preference right to purchase the same.</p>

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

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

<p>Water Divisions — Salary of Superintendent — Liability of County —Evidence.</p> <p>In an action against a county to recover-its pro rata share of the salary of the superintendent of irrigation of a water division, where the county is not mentioned by name in the act creating the water division or the one creating the water district, and the evidence showed that no lands are irrigated in the county, and that there are no natural streams of running water sufficient to irrigate from in the county, that there is a dry creek in the county bearing the name of one mentioned in the statute creating the division, but that except for short periods of floods or freshets, it does not contain enough water to irrigate from, the evidence was insufficient to establish any liability against the county.</p>

<p>1. Change of Venue — Appearance—Filing Demurrer — Waiver.</p> <p>A defendant entitled to remove a cause for trial to another county on the ground that he resides and was served with summons in such other county, does not waive his right of removal by filing a demurrer to plaintiff’s complaint at tbe time he presents his application for removal.</p> <p>2. Change of Venue — Time for Filing Application.</p> <p>An application to remove a cause to another county for trial on the ground that defendant resides and was served with summons in such other county is in apt time if filed within the time fixed by the summons for defendant to appear and plead.</p> <p>3. Change of Venue — Application — Negativing Exceptions— Pleading.</p> <p>Upon motion to change the place of trial of a cause on the ground that defendant resides and was served with summons in the county to which the change was sought, it is not necessary that the application should negative all the exceptions provided in the code whereby such change is not required, if the complaint affirmatively shows that the cause does not come within any of the exceptions.</p> <p>4. Contracts — Guaranty—Goods Sold and Delivered.</p> <p>An action by a publishing company against a party who contracted for a route for the circulation and sale of its paper and against other parties who guaranteed the contract of the circulator, is an action upon the guaranty contract, and not an action for goods sold and delivered, and the code provision authorizing an action for goods sold and delivered to be brought in the county where the plaintiff resides or where the goods were sold does not apply.</p> <p>5. Contracts — Guaranty—Place of Trial.</p> <p>The fact that a contract of guaranty was executed and dated in the county where , suit was brought upon it does not make it a contract to be performed in that county so as to deprive the defendants of the right to remove the cause for trial to the county of their residence.</p>

<p>Contracts — Construction—Partial Payments.</p> <p>Plaintiff was employed by defendant to survey and prepare for patent certain mining claims, the compensation of $550 to be paid in installments. The provision for the third installment was for “the amount of cost of advertising and one-half the balance of said $550.00 after deducting amounts already paid.” Held, that the third installment would be the amount of cost of advertising plus one-half of the balance of the $550 unpaid, and not one-half of said balance less said cost.</p>

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

<p>Mortgages — Judicial Foreclosure — Sales.</p> <p>In a judicial foreclosure of a mortgage the sheriff alone is authorized to execute the decree of foreclosure and sell the land, and it is error for the court to appoint a commissioner, other than the sheriff, to make such foreclosure sale, where súch appointment is at the time objected to.</p>

<p>1. Appellate Practice — Right Judgment upon Wrong Reasons.</p> <p>If a judgment is right it will not he reversed because it is based upon wrong reasons.</p> <p>2. Estates of Decedents — Executors—Removal.</p> <p>Where an executor of an estate is indebted to the estate and denies the indebtedness and refuses to account to the estate for the money he owes it, he is justly chargeable with mismanagement, and should be removed.</p>

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

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

<p>1. Cities and Towns — Action for Violation of Ordinance — Complaint.</p> <p>In an action before a police magistrate against a defendant for violating a town ordinance, the only process required is a summons. A complaint is unnecessary, and where a defendant appeared and went to trial upon a complaint, and the evidence did not depart from the cause laid in the complaint, and the presence of the complaint worked no prejudice to defendant, he cannot object to the insufficiency of the complaint.</p> <p>2. Same — Appeal.</p> <p>An appeal to the county court from a judgment of a police magistrate convicting defendant of a violation of a town ordinance cured any defects in the complaint so far as they affected the procedure before the magistrate.</p> <p>3. Cities and Towns — Action for Violation of Ordinance — Complaint.</p> <p>In an action before a police magistrate against defendant for violating a town ordinance, a complaint which notifies defendant of what ordinance he is charged with violating and the manner in which it is claimed the ordinance was violated is sufficiently certain in stating the cause of action.</p> <p>4. Cities and Towns — Action for Violation of Ordinance — Appeal —Summons.</p> <p>An appeal to the county court from a judgment of a police magistrate convicting defendant of a violation of a town ordinance cured any defects in the summons.</p> <p>5. Cities and Towns — Violation of Ordinance — Judgment.</p> <p>A judgment of a police magistrate convicting defendant of a violation of a town ordinance, which directs that in default of the payment of the fine adjudged against defendant, that he be confined in the town jail, or if there be no such jail, in the county jail, is warranted by section 4435, Mills’ Ann. Stats. ' •</p> <p>6. Appellate Practice — Bill of Exceptions — Amendment—Objection Waived.</p> <p>An objection to an amendment of the bill of exceptions on the ground of insufficiency of notice of application for an order to amend by the lower court, comes too late, where issue is joined after the amendment is filed and the first objection to the amendment is urged in appellant’s reply brief.</p>

<p>1. Bills and Notes — Pleading—Partnership.</p> <p>In an action against a partnership firm upon a promissory note signed hy the firm, an answer that a member of the firm executed the note for a purpose outside the partnership business, and without the authority of his copartners, and that such facts were known to payee and to plaintiff before the note was endorsed to him, stated a good defense and it was error to sustain a demurrer thereto.</p> <p>2. Bills and Notes — Endorsement—Presumption.</p> <p>In an action upon a promissory note by an endorsee, the law presumes that the endorsement was made before maturity, and that the endorsee acquired the note in good faith for a valuable consideration in the usual course of business and without notice of any circumstance impeaching its validity, and an answer that the note was procured by fraud of the payee states no defense in the absence of averments overcoming these presumptions.</p> <p>3. Bills and Notes — Endorsements—Defenses.</p> <p>A second endorsee of a promissory note takes as good title as his endorser had, and in an action hy a second endorsee an answer that would not be a defense to the note in the hands of the first endorsee is no defense as against plaintiff.</p> <p>4. Pleading — Amendment—Discretion—Appellate Practice. Where a pleading is demurred to, the pleader has a right to</p> <p>amend as of course, hut when this right has been exercised by one amendment, any further amendment is within the discretion of the trial court, and unless it clearly appears that such discretion has been abused, a ruling of the trial court denying such amendment will not be disturbed by a court of review.</p>

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

<p>Mechanics’ Liens — Mines and Mining — Contract to Sell — Improvements by Purchaser.</p> <p>Where a mine owner leased certain mining property with an option to purchase and the contract was in effect, a contract for the sale of the property with an obligation on the part of the purchaser to operate the mine and to invest the proceeds in the improvement of the property, and for the purpose of developing and improving said property, the purchaser purchased and attachéd to the property certain mill fixtures, an ore crusher, ore cars, drills and drill supplies, and the purchaser having forfeited his contract, the owner took possession of the property with all the improvements, the dealer who sold to the purchaser the mill fixtures, etc., was entitled to a lien on the interest of the owner of the mine in the property for the price of the material so furnished.</p>

<p>1. Cities and Towns — Contract's—Lights—Indebtedness—Constitutional Limitations.</p> <p>A contract between a city and an electric light company-providing for the lighting of the streets of the city by the company for a term of ten years at a stipulated price per year for each light with an obligation on the part of the city to use. not less than a certain number, if a debt at all within the meaning of section 8, article 11 of the constitution, limiting the amount of municipal indebtedness, the extent of the debt is only the amount of the annual payment provided for, and not the aggregate amount of the total minimum payments to be made during the ten years.</p> <p>2. Same — Appropriations.</p> <p>Under the provisions of a city charter that the city council shall not order the payment of any money for any purpose in excess of the amount appropriated for the current year, nor make any contract imposing upon the city any liability to pay money, until a definite amount of money shall have been appropriated to liquidate all pecuniary liability of the city under such contract; where the city charter expressly empowered the city council to provide for lighting the streets and public buildings, a contract providing for the lighting of the streets for a term of ten years is not invalid because of a failure of the city council to make a prior appropriation to cover the liability created thereby for the entire term of the contract, but it is sufficient if an appropriation is made each year to cover the annual payment for that year.</p> <p>3. Cities and Towns — Lighting Contracts — Reasonable Term.</p> <p>A city has authority to contract for the lighting of its streets and public buildings for a reasonable number of years, although its charter does not expressly authorize it to make such contract. And where there is no express limit upon the power of the city council as to time, the court should not interfere with the judgment and discretion of the city council in fixing the term of such a contract unless it clearly appears that there was an abuse of discretion. Ten years held not an unreasonably long term for such contract.</p> <p>4. Same — Monopoly.</p> <p>A contract between a city and electric light company providing for the lighting of the streets of the city for a term of ten years, and granting the company the privilege of constructing and operating in the city a commercial electric light and power plant for the purpose of furnishing light and power to the residents of the city is not invalid on the ground that it tends to create a monopoly.</p> <p>5. Cities and Towns — Lighting Contracts — Powers of City Council.</p> <p>A contract by a city to secure the lighting of its streets is in the exercise of its business powers as distinguished from its governmental functions, and such a contract for a term of years is not objectionable as a surrender by the city council of its legislative powers.</p> <p>6. Same — Board of Public Works.</p> <p>A city charter creating a board of public works which is given exclusive management and control of all public and local improvements and among other things the “erection of poles, stringing of wires, laying of tracks, pipes and conduits for wires whether done by the city, corporation or individuals,” does not take away from the city council and confer upon the board of public works the power to contract for lighting the streets and public grounds of the city where the power to provide for such lights is expressly granted to the city council by the charter.</p> <p>7. Cities and Towns — Lighting Contracts.</p> <p>A contract between a city and electric light company for lighting the streets and public grounds of the city will not be held invalid as unnecessary, excessive and unreasonable because a competing company which had been furnishing light to the city at a higher price offered to furnish the lights at a cheaper rate than that provided in the contract, such offer being made after the contract had been entered into and the contracting company had expended large sums of money towards constructing its plant, but before the ordinance legalizing the contract was finally passed by the city council.</p>

<p>1. Cities and Towns — City of Denver — Appropriations—Fire and Police Board.</p> <p>Under the charter of the city of Denver the city council, in making appropriation for the expenses of the fire and police board, is required to consider and base its appropriation upon the estimate furnished by the fire and police board and not upon an estimate furnished by the mayor.</p> <p>2. Same — Commissioner of Supplies.</p> <p>Under the charter of the city of Denver the fire and police board have exclusive authority to expend for and on behalf of the city, all funds set apart in the annual appropriation ordinances for the use of the board, and a provision in the appropriation ordinance that an appropriation to purchase a fire engine, hose etc., should he expended by the commissioner of supplies, is absolutely void and the board would have the right to direct the expenditure of the fund, notwithstanding such provision.</p> <p>3. Same — License Inspectors — Mandamus.'</p> <p>The city council of the city of Denver will not he compelled by mandamus to make an appropriation to pay the salaries of license inspectors in accordance with an estimate furnished by the fire and police board where such inspectors are not provided for in the charter and nothing appears in the alternative writ to indicate what such inspectors are or how the office was or would be created, or how the inspectors were or would be appointed.</p> <p>4. City of Denver — Appropriations—Fire and Police Board— Mandamus.</p> <p>The charter of the city of Denver providing that the fire and police hoard shall present to the city council a detailed statement of the money necessary to defray the expenses of that department for the succeeding year and that the city council shall provide for the appropriation of money sufficient to defray such expenses, using the estimates of the board as a basis for such appropriation, and conforming thereto as nearly as the condition of the city finances will permit, does not require the city council to appropriate the exact sums named in the statement of the fire and police hoard. If the city council should fail to make any appropriation for the use of the fire and police board it may be compelled to do so by mandamus, but it cannot be compelled by mandamus to appropriate the sums'named in the statement of the fire and police board.</p> <p>5. Practice — Mandamus—Demurrer.</p> <p>A demurrer to the answer in mandamus proceedings relates back to the alternative writ, and if that writ is insufficient it should he so adjudged.</p>

<p>1. Tax Sales — Redemption—Presumptions—Burden of Proof.</p> <p>Property sold for taxes cannot be redeemed by one having no interest therein. When application is made to redeem, it is the duty of the treasurer to determine whether the applicant has such interest in the property as will entitle him to redeem, and where a redemption is effected, the presumption of law is in favor of the judgment of the treasurer in allowing the redemption, and the applicant will be presumed to have had the requisite interest, and the burden is on the person attacking such redemption on that ground to rebut such presumption by evidence.</p> <p>2. Tax Sales — Certificates—Assignment—Burden of Proof.</p> <p>In an action by one claiming as assignee of a certificate of purchase at a tax sale, where the assignment is put in issue by the answer, the burden is on the claimant to establish such assignment by evidence, and in the absence of such evidence defendant is entitled to judgment.</p> <p>3. Appellate Practice — Abstract of Record — Evidence—Presumptions.</p> <p>Where the abstract of record does not contain all the evidence, it will be presumed that the evidence was sufficient to sustain the judgment.</p>

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

<p>1. Bills and Notes — Negotiability—Mortgages.</p> <p>A provision in a promissory note secured by deed of trust, to tbe effect that if any of the interest coupons should remain due and unpaid for thirty days the note and accrued interest might immediately be collected according to the tenor of the deed of trust, does not import into the note the terms of the deed of trust so as to render the note non-negotiable.</p> <p>2. Same — Payments—Principal and Agent — Release.</p> <p>A promissory note and deed of trust securing the same were executed to a securities company in Colorado, but the note and coupons were made payable at a bank in New York. The note was transferred to another company soon after its execution. The payor remitted the money to the payee, the Colorado company, to pay the coupons as they fell due, so that the money should reach its office several days before maturity, and always received an acknowledgment of the receipt of the money and later received the coupon. One of the letters acknowledging receipt of the money by the payee company stated that the coupon would be sent when received from the holder. The holder of the note collected all the coupons at the New York bank except the last, which was collected from the Colorado company. The payor paid the principal to the Colorado company, who converted the money and failed to pay it to the holder. Held, that the payor was charged with notice of the transfer of the note, and that payment to the Colorado company was not a satisfaction of the note, and a release of the trust deed by the trustee at the request of the Colorado company was void.</p> <p>-3. Same— Innocent Purchaser.</p> <p>Where a loan, company loaned money and took a deed of .trust to secure the same and part of the consideration was that it should pay off a former negotiable note and deed of trust on the 'same land, and did remit the money to pay off the same to the payee of the note, who caused a release to be executed by the ■trustee in the former deed of trust, but the note having been transferred before maturity, the payee converted the money and failed to pay it over to the holder, the company making the second loan was charged with notice of all that was disclosed by the former deed- of trust, and stood in no better position than the payor of the note, and was not an innocent purchaser.</p>

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

<p>Bills and Notes — Counterclaims.</p> <p>In an action upon a joint and several promissory note, one of the makers may interpose as a counterclaim an indebtedness upon contract due him from plaintiff.</p>

<p>1. Estates of Decedents — Wills—Probate—Appeal Bonds.</p> <p>In an appeal to the district court from a proceeding in the county court probating a will, where there was no executor or administrator of the estate, the appeal bond properly ran to the estate of the deceased.</p> <p>2. Jurors — Challenge for Cause — Harmless Error.</p> <p>The erroneous overruling of challenges for cause to juries is not prejudicial where it appears that neither of the jurors challenged served on the jury, and does not appear that the challenging party exhausted his peremptory challenges in order to get rid of them.</p> <p>3. Wills — Contests—Undue Influence — Evidence.</p> <p>In the contest of a will on the ground of undue influence, the evidence required to establish the undue influence need not be of that direct, affirmative and positive character, which is required to establish a tangible physical fact. The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred.</p> <p>4. Same — Verdict of Jury.</p> <p>In the contest of a will on the ground of undue influence where the province of the jury is to draw conclusions from conceded or undisputed facts the verdict of the jury should not be disregarded except for grave reasons clearly apparent.</p> <p>5. Same.</p> <p>In the contest of a will on the ground of undue influence all circumstances which tend to throw any light upon the question should be considered by the jury.</p> <p>6. Same — Instructions.</p> <p>Instructions on the issue of undue influence in the execution of a will discussed and approved.</p>

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

<p>Appellate Practice — Failure to File Record in Time — Dismissal.</p> <p>The failure of an appellant to file his record with the appellate court within the time prescribed by the code does not of itself deprive him of his appeal. An appeal will not be dismissed because the record was not filed within the required time, where the motion to dismiss was not made until after the record was filed, and where it appears that no prejudicial delay has been caused by the failure to file the record within the prescribed time.</p>

<p>1. Appellate Practice — Failure to Pray Appeal Within Time— Jurisdiction — Appearance—Waiver,</p> <p>The requirement of the code that an appeal must be. prayed for within five days after judgment is rendered is jurisdictional, and where an appeal was prayed for more than five days after the judgment was rendered, the appellee by entering a general appearance in the appellate court, does not waive the requirement, but the appeal must be dismissed upon motion made at any time before final hearing and judgment.</p> <p>2. Same — Dismissal—Redocketing on Error.</p> <p>Where an appeal is dismissed because not prayed for within five days after the judgment was rendered the cause will be re-docketed on error if the appellate court would have jurisdiction of the cause if brought up by writ of error.</p>

<p>Appellate Practice — Failure to File Assignment of Errors — Dismissal.</p> <p>The rules of the court of appeals requiring an appellant to assign errors in writing at the time of filing the transcript an'd providing that in case of failure to assign error the appeal may he dismissed, do not necessarily require a' dismissal in all cases, because of a failure to assign errors within the time fixed. An-appeal will not he dismissed because of a failure to assign errors within the time fixed, where the appellant makes a showing tending to explain and excuse the failure, and where it appears that no material delay nor prejudice to appellee has been caused thereby.</p>

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

<p>1. Judgments — Action to Vacate — Direct Attack.</p> <p>An action brought in the court where a judgment was rendered to vacate such judgment on the ground that no notice or summons was served on the judgment defendant, is a direct attack on the judgment sought to be vacated.</p> <p>2. Same — Pleading—Estates of Decedents.</p> <p>Where a defendant in an action died pending the action, and his administratrix was substituted and judgment entered against her as such administratrix without any notice or summons having been served upon her and without any appearance by her in the action, in an action by her in the same court to vacate such judgment, an allegation in her complaint of a meritorious defense to the action in which the judgment was rendered is not essential.</p> <p>3. Judgments — Parties—Substitution of Administrator — Notice.</p> <p>Where a party defendant died pending suit, and his administratrix was substituted as party defendant, and judgment rendered against her without any notice or summons having been served on her and without any appearance by her in the action* the judgment was void.</p>

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

<p>Mortgages — Homestead—Defective Acknowledgment.</p> <p>Where a husband and wife executed a deed of trust on their homestead to obtain an extension of time of an indebtedness due from them to a building and loan association which indebtedness was secured by valid deed of trust on the same premises, such new trust deed will not be cancelled as to the wife’s homestead rights because the notary public taking the acknowledgment was a stockholder in the building and loan association, where no offer was made to pay the debt, make good her covenants nor to reinstate the former lien substituted by the new deed of trust.</p>

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

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

<p>Mines and Mining — Lease—Contracts—Development Work.</p> <p>A contract for lease of a mine for two years required the lessee to continuously work the mine with reasonable diligence and in a workmanlike manner and to keep the same timbered during the term of the lease, and in case of failure the lease was to become void. The lessee also covenanted to do a certain amount of development work at certain stated periods during the term. Held, that the special covenant to do the development work did not control the general covenant to work the mine continuously, and that a discontinuance of mining operations for two months forfeited the lease, and that the pumping of water from the mine during that two months did not satisfy the covenant to work the mine continuously.</p>

<p>Judgments — Law of the Case — Title to Office — Emoluments.</p> <p>In an action to try title to an office a judgment for respondent was reversed by tbe court of appeals, the opinion of the court stating that relator was lawfully appointed to the office and that his attempted removal and the appointment of respondent were void and that the judgment ought to have been one ousting respondent and putting the relator into possession. When the remittitur was filed in the lower court the term of office in controversy had expired and the parties stipulated that the judgment of the court of appeals should be made the judgment of the lower court, and an order for such judgment was signed. Judgment was then entered for relator for costs without specifically awarding title to the office. In a subsequent action by relator against respondent to recover the fees and' emoluments collected by respondent while wrongfully In possession of the office, the judgment in the former case was sufficient to establish plaintiff’s right and he was entitled to recover.</p>

<p>1. Appellate Practice — Abstract of Record — Pleading — Sufciency of Complaint.</p> <p>Where a cause was tried upon complaint, answer and replication, an objection to the sufficiency of the complaint will not he considered by tbe appellate court where the abstract of record fails to inform the court as to the contents of the answer and replication, since the defects, if any, in the complaint may have been cured by the subsequent pleading.</p> <p>2. Appellate Practice — Abstract of Record — Evidence.</p> <p>An objection that the evidence is insufficient to sustain a judgment will not be considered by the appellate court, where the evidence is not abstracted, nor printed in the abstract of record.</p>

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

<p>1. Sales — Chattel Mortgages — Bills and Notes.</p> <p>Plaintiffs agreed with, their debtor to purchase his stock of goods and gave him their promissory note for the amount of the agreed purchase price over and above his debt to them and took from him a bill of sale. On the same day another creditor attached the goods and plaintiffs and the debtor made another agreement whereby they abandoned the sale and plaintiffs paid off the attachment claim and added it to their own claim, and took the debtor’s note and a chattel mortgage on the goods to secure it. The debtor agreed to return plaintiffs’ note, but failed to do so, and indorsed it to defendants who had full knowledge of the transaction between plaintiffs and the debtor. Defendants transferred the note before maturity to an innocent purchaser, and plaintiffs were compelled to pay the note.. Held, that plaintiffs and the debtor had a right to abandon their agreement of sale and substitute therefor, the chattel mortgage. That the entire proceeding constituted but one transaction and a formal resale from plaintiffs to the debtor was not necessary. That plaintiffs’ note indorsed to defendants was without consideration and defendants were liable to plaintiffs for the amount plaintiffs were reguired to pay thereon.</p> <p>2. Appellate Practice — Assignment of Errors — Abandonment.</p> <p>Assignments of error not argued or presented in appellants’ brief will be treated as having been abandoned.</p>

<p>1. Principal and Agent — Commissions—Quantum Meruit.</p> <p>In an action by a real estate agent for commission where he sues for the reasonable value of his services, it is immaterial whether or not there was. an agreement as to the amount of the commission.</p> <p>2. Same — Evidence.</p> <p>In an action by a real estáte agent for commission where the evidence showed that he was entitled to commission, and he testified that his services were worth a certain sum, and his evidence as to value was uncontradicted, he was entitled to judgment for that amount.</p> <p>3. Same.</p> <p>Evidence examined and held sufficient to entitle a real estate agent to commission on a sale of property.</p> <p>4. Appellate Practice — Directing Judgment.</p> <p>Where a cause has been twice tried without material change of the evidence and each time the evidence showed plaintiff to be entitled to a judgment for a certain sum, and there is no reason to believe that there would be any material change in the evidence at another trial, the judgment of the lower court for defendant will be reversed and judgment for plaintiff directed.</p>

<p>1. Choses in Action — Assignment—Parties.</p> <p>The assignee of a chose in action may maintain suit thereon in his own name before a justice of the peace.</p> <p>2. Same — Evidence.</p> <p>An assignment of a debt may be by parol and may he inferred from the acts and conduct of the party.</p> <p>3. Assignment of Debt — Consideration.</p> <p>In an action by the assignee of a debt it is immaterial to defendant whether or not there was any consideration for the - assignment.</p> <p>4. Same.</p> <p>In an action by the assignee of a debt the fact that the assignee had agreed to pay a board hill of the assignor with the money if collected could not defeat a recovery by the assignee.</p>

<p>1. Fire Insurance — Limitation.</p> <p>The fact that an action on a fire insurance policy was not commenced within the time limited by the policy and by-laws of the company within which such action might be commenced would not defeat the action if the plaintiff was induced to delay the commencement of the action by demands of the defendant for further statement and information concerning the loss, and by continual promises of adjustment.</p> <p>2. Fire Insurance — Loss—Evidence.</p> <p>Evidence discussed and held sufficient to sustain a judgment in an action upon a policy of fire insurance for loss by fire.</p> <p>3. Appellate Practice — Evidence—Credibility of Witnesses.</p> <p>The question of the relative credibility of witnesses is settled by the verdict of the jury and will not be considered by the appellate court.</p>

<p>Appellate Practice — Evidence—Verdict—Fire Insurance.</p> <p>In an action on a policy of fire insurance for loss by fire where the- jury returned a verdict for plaintiff upon conflicting evidence submitted to them under proper instructions and there is sufficient evidence to support the verdict, it will not he reversed on the ground that it is against the weight of evidence on defendant’s plea that the fire was caused by the wilful act of plaintiff.</p>

<p>Taxes and Taxation — Interest and Penalties.</p> <p>Interest and penalties collected- on delinquent state tax belong to the state. Where such interest and penalties on delinquent state tax have been collected by a county treasurer and retained by the county, an action may be maintained by the state against the county to recover such interest and penalties.</p>

<p>1. Apellate Practice — Bill of Exceptions — Change of Venue.</p> <p>An assignment of error to a ruling of the court- denying an application for change of venue "will not be considered -where the facts upon which it was based are not within the bill of exceptions.</p> <p>2. Appeal Bonds — Action Upon — Concurrent Remedies — Election.</p> <p>Where a cause was appealed from the county court to the district court and affirmed, and an appeal was taken from the judgment of the district court to the supreme court where it was affirmed, actions may be maintained upon both appeal bonds limited, however, to one satisfaction, and it was not error to refuse to require the obligee of the bonds to elect between actions pending upon the two bonds.</p> <p>Z: Lunatics — Conservators — Judgments — Contempts — Appeal Bonds — Satisfaction.</p> <p>Where a judgment was rendered against a conservator of the estate of a lunatic in favor of the estate, from which he appealed and the judgment was affirmed, and the conservator was committed for contempt for failure to pay such judgment and confined in county jail, his commitment did not operate to satisfy his obligation nor that of his sureties on his appeal bond.</p> <p>4. Appeal Bonds — Estate of Lunatic — Conservator.</p> <p>Where objections were filed to the report of a conservator of the estate of a lunatic, and judgment was rendered in favor of the estate against the conservator from which he appealed, giving an appeal bond running to the estate of the lunatic, after having the benefit of the appeal which was decided against him, the conservator is estopped to question the validity of the appeal bond for want of an obligee therein.</p>

<p>Opinion Followed.</p> <p>The judgment in this case is affirmed on the opinion in the case of Duncan v. Thomas, etc., ante, page 522.</p>

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

<p>Appeal from the District Court of Fremont County. (Consolidated Causes.)</p>

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