Volume 18 — Colorado Court of Appeals Reports

<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 El Paso County. </p>

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

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

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

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

<p>1. Estates of Decedents — Administrators—Continuing Business of Deceased.</p> <p>The general rule is that an executor or administrator is not permitted to engage in trade with the assets of the estate, nor to carry on the business of the decedent unless expressly so directed by the ■will, or authorized by the court which has charge of the administration of the estate. If he does, he must himself personally bear all expenses incurred and losses sustained, and account for all profits. But there are exceptions to the rule, as for instance, where it is necessary in a mercantile business or manufactory, temporarily, to continue the business, not for the purpose, primarily, of making profit out of the business, but in order to dispose of and realize upon the assets of the estate to the best advantage. In such case the purchase of some goods may be necessary to aid in the sale of the decedent’s stock on hand, and the purchase will be treated as a necessary and allowable expense of settlement of the estate.</p> <p>2. Same — Presumptions.</p> <p>Where an administrator under an order of court continued for three years a manufacturing business of the deceased, in the absence of a showing to the contrary, it will be presumed that the court acted wisely in making the order, and that it was necessary to continue the business for three years in order to wind it up to the best advantage of the estate.</p> <p>3. Same — Claims for Goods Purchased.</p> <p>Where an administrator under an order of the court continued the manufacturing business of his deceased for three years at a profit to the estate, and during the time purchased some goods which were necessary to the business, and the creditor who sold the goods to the administrator presented his bill as a claim against the estate after the administrator who contracted the debt had resigned and his successor had been appointed, the claim was properly allowed as a second-class claim against the estate.</p>

<p>1. Life Insurance — Cause of Death — Burden of Proof.</p> <p>In an action upon a policy of life insurance where the defendant answered that death was caused by the intentional taking by deceased of an overdose of a narcotic drug, the burden is on the defendant to prove that the drug is a narcotic and that death was caused by an overdose thereof.</p> <p>2. Same — Appellate Practice — Findings.</p> <p>In an action upon a policy of life insurance a finding of the trial court upon conflicting evidence as to whether or not death was caused by an overdose of a narcotic drug is conclusive upon the appellate court where there is sufficient evidence to support the finding.</p> <p>3. Life-Insurance — Cause of Death — Proofs—Evidence.</p> <p>In an action upon a policy of life insurance plaintiff was not concluded by the statement of the physician in the proof of death furnished to the company as to the cause of the death of insured, but could contradict such statement by other evidence where defendant was notified by the pleading that plaintiff would dispute such statement.</p>

<p>1. Pleading — Contracts—Principal and Subcontractors.</p> <p>A complaint which alleges that plaintiffs made an agreement with the contractor who was constructing a building for defendant to furnish the material and plaster the building for a certain price, and that before they commenced work defendant agreed with plaintiffs that if they would do said plastering and furnish material therefor, he would pay plaintiffs the sum agreed on by plaintiffs and the contractor, states a cause of action against defendant as owner and in favor of plaintiffs as principal contractors.</p> <p>2. Judgments — Parties—Mechanics’ Liens.</p> <p>In an action for a personal judgment against the owner and to enforce a mechanics’ lien on real estate where plaintiffs claimed under a contract originally made with a contractor under defendant, but which defendant assumed and made his own contract before plaintiffs commenced work thereunder, and in which action said contractor was joined as a party defendant, the fact that no final disposition was made of the case as to said contractor would not affect the validity of a personal judgment against the owner or a lien decreed upon the real estate.</p>

<p>Corporations — Annual Reports — Liability of Directors.</p> <p>The failure of a corporation to file the annual report as required by section 491, Mills’ Ann. Stats., renders the directors of the corporation personally liable for all debts contracted within the year next preceding the time when it should have been filed unless the capital stock of the corporation has been fully paid up and a certificate of that fact made and filed. Upon the. expiration of the time without the filing of such report a right of action at once accrues in favor of a creditor against the directors and the fact that the capital stock had been fully-paid in-and a certificate of that fact made within the time but which was not filed until six days after the expiration of the time within which the report was required to be filed, would not relieve the directors of the liability.</p>

<p>1. Cities and Towns — Elections—Office of Mayor — Filling Vacancy — Mandamus.</p> <p>Under section 4488, Mills’ Ann. Stats., providing that in case a vacancy occurs in the office of mayor of a city, the city council shall order a special election as soon as practicable to fill the vacancy, it is the duty of the city council to order such special election at its first regular session after a vacancy occurs, and in case of a failure or refusal to do so mandamus will lie to compel them to order such election.</p> <p>2. Same — Election Expenses.</p> <p>Where a vacancy occurs in the office of mayor of a city, the fact that the last annual appropriation for election expenses was exhausted by the general election which followed it is no valid reason for the city council refusing to order a special election to fill the vacancy.</p> <p>3.. Same — Demand.</p> <p>Where a city council failed to order a special election to fill a vacancy in the office of mayor as required hy statute, no formal demand on the council to order such election was necessary before commencing an action of mandamus to compel them to do so.</p> <p>4. Same — Relators.</p> <p>Where a city council fails to order a special election to fill a vacancy in the office of mayor as required by statute mandamus may be instituted to compel them to do so upon the relation of private citizens.</p>

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

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

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

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

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

<p>Opinion Followed.</p> <p>This case is affirmed on the opinion in the case of Chapman v. The Board of Commissioners of Phillips County, 17 Colo. App. 236.</p>

<p>Fire Insurance — Mortgage Clause — Appraisement — Rights of Mortgagee — Pleading.</p> <p>A policy of fire insurance containing tlie union mortgage clause was issued on a building covered by a deed of trust and was assigned as collateral security to the trustee as additional security to the mortgage debt. The policy also provided that in case of loss or damage the value should be ascertained or estimated by the insured and the insurance company. In an action on the policy by the trustee for the loss caused by the destruction of the building by fire, the plaintiff was not bound by an agreement between the company and the insured as to the amount of the loss, and a demurrer was properly sustained to an answer setting up such agreement at a less sum than the face of the policy and making tender of such agreed sum.</p>

<p>Sales — Breach of Contract to Buy — Measure of Damage — Market Price — Cost pf Production — Instructions.</p> <p>In an action for damages for breach of contract to purchase the output of a coal mine, if the output of the mine could have been sold in the market at a price above the cost of production the measure of plaintiff’s damage vould be the difference between the price agreed to be paid by defendant and the market price. ' And "in the absence of a showing that there was no market value, an instruction that the measure of damage was the difference between the contract price and the cost of producing the coal named in the contract was erroneous.</p>

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

<p>Wills — Contests—Evidence.</p> <p>In a trial in the district court on appeal from an order of the county court probating a will the contestant is not limited to the testimony of the subscribing witnesses of the will, but is entitled to introduce any competent testimony as to the mental capacity of the testator.</p>

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

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

<p>Quieting Title — Pleading—Judgment on Pleading.</p> <p>In an action to quiet title to an undivided three-fourths interest in a mining claim where the complaint disclosed the estate claimed by plaintiffs and the title by which the same was held, and one of the defendants answered alleging title to an undivided one-tenth interest in the claim and from the answer it appeared that defendant deraigned title from the same source that plaintiffs deraigned title to part of their claim, and from the pleadings it appeared that the interests claimed by plaintiffs and defendant from a common source was in excess of the interest owned by their common grantor, the claim of defendant was to the extent of such excess adverse to plaintiffs’ interest and it was error to strike out defendant’s answer and enter judgment for plaintiffs on the pleading.</p>

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

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

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

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

<p>1. Mortgages — Wrongful Sale by Mortgagee — Measure of Damage — Conflicting Instructions.</p> <p>In an action for damage for a wrongful sale of land by defendant which plaintiff had mortgaged to defendant by a deed absolute in form and for refusing to permit plaintiff to redeem, where the court in one section of its instructions told the jury that the measure of damage was the difference between the sum of the liens on the land and the amount for which it was sold by defendant, provided it was not sold for less than its market value, and in another section that the measure was the difference between the market value at the time of sale and the price for which it was sold by defendant, and in another section that plaintiff was entitled to recover the entire purchase price with interest, and it does not appear which rule the jury adopted, even if any one of the rules laid down for the measure of damage was correct, the instructions are so conflicting that a verdict and judgment based thereon should be reversed.</p> <p>2. Same.</p> <p>In an action for damage for a wrongful ■ sale by defendant of land held by him under a deed from plaintiff absolute in form but in fact a mortgage, and for refusing to allow plaintiff to redeem, where the answer tendered other issues and there was evidence tending to support them, it was error to instruct the jury that the only question before it was the measure of damage.</p>

<p>1. Officer’s Fees — Right to Receive — Performance of Service. ■ The right of a- public officer to demand and receive fees for services depends upon the rendition of the services.</p> <p>2. District Attorneys — Fees—Performance of Service.</p> <p>A district attorney is not entitled to demand and receive commission from a county upon a sum received by the county in settlement of a suit against the county treasurer and sureties upon his official bond to recover a shortage in the treasury fund, where the suit was brought by the county attorney and the only thing the district attorney did in connection with the suit was to request that his appearance he entered for the county which was done upon motion of the county attorney, the “suit having been compromised and settled for a smaller sum than that- claimed shortly after the entry of the appearance of the district attorney and dismissed by the county attorney, the district attorney taking no part in such settlement although the district attorney was ready and willing to perform any necessary service connected with said suit had he been requested to do so by the county attorney or commissioners.</p>

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

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

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

<p>1. Banks — Liability of Stockholders — Pleading.</p> <p>In an action against a stockholder of an insolvent banking corporation to enforce his individual liability for a debt of the bank, the complaint must allege the number of shares of stock issued by thé insolvent corporation, the number held by the respective stockholders, the amount of the debts of the bank for which the stockholders are liable, together with the dates when created; and a complaint which failed to allege these facts was insufficient t'o support a judgment, and a demurrer thereto was properly sustained.</p> <p>2. Banks — Liability of Stockholders — Equity Proceeding.</p> <p>The only proceeding through which complete relief can be administered under the statute, making the stockholders of an insolvent banking corporation liable for its debts, is an equitable one brought by one creditor in behalf of all others similarly situated against all the stockholders.</p>

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

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

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

<p>1. Negligence — Master and Servant — Safe Appliances.</p> <p>It is the duty of a master to exercise reasonable care in providing the servant proper machinery and appliances and in fit condition for use, for the performance of the work required of him, but where the master has provided upon the premises and within reach of his servant suitable appliances, he is not liable for injuries to the servant caused by his failure to use the appliances furnished.</p> <p>2. Same — Fellow Servant — Assumption of Risk.</p> <p>Plaintiff had charge of the cupolas of the converting department of defendant’s iron works. D. had charge of the machinery of the same department. Each had men under him but neither was under or subject to the order of the other, both being subject to orders of the superintendent. The superintendent ordered plaintiff to take his men and replace a runner that had burned out with a new one, and was told by plaintiff that it could not safely be done without a block and fall, whereupon the superintendent said he would send D. with the block and fall, and directed plaintiff to assist him in replacing the runner. Shortly afterwards D. appeared without the block and fall and upon being asked by plaintiff where it was answered that it was down in the engine room but that he was in a hurry and had not time to get it, and directed plaintiff to proceed without it. In attempting to replace the runner without the block and fall plaintiff was injured. Held, that plaintiff took his own chances in following the directions of D. and voluntarily assumed the risk of injury incident to the attempt to replace the runner without the block and fall, and defendant was not liable for such injury.</p>

<p>Appellate Practice — Verdict—Evidence.</p> <p>Where plaintiff and defendant were the only witnesses and plaintiffs testimony established his case hut was flatly contradicted by defendant, a verdict for plaintiff will not be disturbed on appeal.</p>

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

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

<p>Judgments — Assignment—Payment.</p> <p>Plaintiff, a debtor, gave to N., a creditor, an order on a third party which was to be credited on his indebtedness to N. The order was accepted by the drawee and was assigned by N. to defendants who were also creditors of plaintiff, in consideration of which defendants agreed to assign their judgment against plaintiff to N. For some reason the judgment was not assigned and afterwards by attachment and garnishment defendant collected said judgment. Held, that the assignment of the order by N. to defendants and the agreement of defendants to assign their judgment against plaintiff to N. was not a payment and satisfaction of said judgment, but was a transaction between defendants and N. with which plaintiff had no concern and plaintiff could not maintain an action to recover bach the money- collected by defendant on the judgment by garnishment.</p>

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

<p>1. Deeds — Consideration—Parol Agreement.</p> <p>The fact that a deed recites a certain sum as the whole consideration and acknowledges the receipt thereof will not prevent the grantor from recovering an additional consideration upon an oral agreement of the grantee even though, such additional consideration was dependent upon the happening of a contingency, if it were such as not to defeat or impair the operation of the conveyance.</p> <p>•2. Same — Receipts.</p> <p>Where at the time of the execution and delivery of a deed to real estate the grantee by parol agreed to pay the grantor a certain sum in addition to the consideration recited in the deed if the grantee should ever utilize the property for any purpose and the grantee did utilize the property for a reservoir, the grantor could maintain an action for the additional consideration. And the fact that at the time of delivering the deed the grantor executed a separate receipt in which he acknowledged payment in full of all that was due would not defeat his action for the additional amount that afterwards became due upon the utilization of the property by the grantee.</p> <p>3. Principal and Agent — Evidence.</p> <p>Agency may be established by evidence of facts and circumstances from which the existence of the agency may be conclusively presumed.</p> <p>4. Conveyances — Consideration—Parol Agreement — Instructions —Evidence.</p> <p>In an action by a grantor against a grantee to CQllect an additional consideration over and above that recited in the deed upon an oral promise of the grantee, an instruction which told the jury that the written instruments were presumed to contain all the agreements of the parties and that the burden was upon the plaintiff to establish the oral agreement by a preponderance of evidence and that the evidence must be so clear ■as to satisfy the jury that such agreement was made, was sufficient. It was not the duty of the court to require the jury to find the establishment of the parol agreement beyond a reasonable doubt.</p>

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

<p>1. Principal and Agent — Commission—Sale of Real Estate — Evidence.</p> <p>In an action by real estate agents for commission where the cause of action was based upon the ground that plaintiffs procured a customer and that through their efforts a sale was effected, evidence that prior to the date of giving the agency to plaintiffs by defendant other agents had introduced to defendant the party who subsequently became the purchaser through them, and that the negotiations with said purchaser through said other agents had never been broken off, was admissible in defense to show that the sale was not effected through plaintiffs’ efforts, and its exclusion was error.</p> <p>2. Same — Instructions.</p> <p>In an action by real estate agents for commission under a specific contract of agency in writing, where plaintiffs based their cause of action on the ground that a sale had been effected through their efforts, and where there was evidence tending to show that negotiations were pending between defendant and the purchaser through other agents prior to the time defendant gave to plaintiffs the agency, and that said negotiations subsequently resulted in a sale, it was error to instruct the jury not to consider any proposition of sale or trade between any parties and defendant prior to the agency contract between defendant and plaintiffs.</p>

<p>1. Appellate Practice — New Trial — Waiver.</p> <p>Under particular circumstances an order granting a new trial may be the subject of review, but to give the complaining party any standing in the appellate court he must abandon his case at that point. By participating in the new triál he acquiesces in the order granting it, and waives any right he may have had to question the correctness of the ruling.</p> <p>2. Sales — Fraudulent Representations — Evidence—Admissions.</p> <p>In an action by a purchaser of mining stock against the seller to recover back the purchase price on the ground that the stock was worthless and was purchased through the false and fraudulent representations of defendant, defendant’s admissions were competent evidence against him.</p> <p>3. Sales — Fraudulent Representations — Principal and Agent— Reliance of Agent.</p> <p>In an action by the purchaser of mining stock against the seller to recover back the purchase price on the ground that the stock was worthless' and that the sale was made through defendant’s false and fraudulent representations, where plaintiff had no personal knowledge of the transaction but made the purchase entirely through an agent, it was sufficient to show the agent’s reliance upon the representations and was not necessary to show plaintiff’s reliance thereon.</p> <p>4. Sales — Fraud—Juries—Verdict—Special Finding.</p> <p>In an action by the purchaser of mining stock against the. seller to recover back the purchase price on the ground that the sale was effected through the false and fraudulent representations of defendant the jury returned a general verdict for plaintiff, and in answer to a special interrogatory found that defendant was guilty of fraud and wilful deceit. The court sustained the general verdict but set aside the special finding on the ground that it was not sustained by the evidence. Held, that the action of the court was not inconsistent, and that its action in setting aside the special finding will not be construed as a ruling that there was no evidence of fraud upon which to' base the general verdict, but that there was not sufficient evidence of fraud and wilful deceit to warrant á verdict the effect of which was to authorize execution against the body of defendant.</p> <p>5. Appellate Practice — Subsequent Evidence.</p> <p>A petition to reverse a ease upon facts which occurred after the trial in the lower court will not be heard in a court of review.</p>

<p>Appellate Practice — Jurisdiction of Court of Appeals — Special Proceedings — Cities and Towns.</p> <p>The statute conferring jurisdiction upon the court of appeals to review the final judgments of inferior courts in civil cases applies only to final judgments or decrees in actions at law or suits in equity, and does not apply to special statutory proceedings. The court of appeals has no jurisdiction to review a judgment of the county court in a proceeding under the act (Session Laws 1901, page 386) providing for the disconnection of outlying territory from cities and towns.</p>

<p>Principal and Agent — Commission—Contracts—Offer and Acceptance.</p> <p>Defendant by oral instructions authorized plaintiff, her agent, to dispose of certain real estate for a certain amount in cash and an exchange of certain real estate belonging to the proposed purchaser, defendant to assume an encumbrance existing on the property to he taken by her in exchange and the purchaser to assume an encumbrance existing on defendant’s property, the principal sum of the encumbrance being named in each case. Plaintiff submitted the proposition to the proposed purchaser who accepted by wire, directing that his attorney prepare the contract of sale which would be signed by his agent and that the contract should make the deal subject to perfect titles and interest on encumbrance, rents and insurance in each case to be adjusted to date of contract. Defendant refused to consummate the sale. Held, that defendant’s oral proposition implied that if accepted the agreement should be made effective by being reduced to writing; that the term “perfect title” used in the acceptance was synonymous with marketable title, and that defendant’s proposition implied that the titles should be marketable; that defendant’s proposition naming the principal of the encumbrance in each case implied that each party should pay the interest on their respective encumbrances up to the date of the contract, and the law implied that each party was entitled to collect rent on his or her property and should bear the expense of insurance, if any, up to the time of the contract of sale. That the acceptance of defendant’s offer was unqualified, and the proposed purchaser being ready, willing and able to comply with the terms of the proposition, defendant was liable to plaintiff for commission.</p>

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

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

<p>1. Mortgages — Foreclosure—Parties.</p> <p>Where the grantor in a deed of trust has disposed of all his interest in the premises covered hy the deed of trust, he is not a necessary party to an action to foreclose such deed of trust where no personal judgment is sought against him.</p> <p>2. Mortgages — Foreclosure—Sheriff's Deed — Order of Court Approving Sale.</p> <p>A sheriff’s deed made in pursuance of the certificate of sale on the foreclosure of a mortgage is not void because no order of court approving the sale was made prior to the execution of the deed.</p>

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

<p>Negligence — Fellow Servants.</p> <p>Defendant was the owner of a mine and mill connected by a tramway used to haul the ore from the mine to the mill. ’ The mill was only used to crush ore from defendant’s mine, and the mine and mill were operated as one enterprise. Held, that plaintiff, the superintendent of the mill, whose duty it was to operate it, and the employees at the mine who handled the ore, were fellow servants and an injury to plaintiff caused by a sledge hammer being negligently mingled with the ore at the mine and shipped to and fed into the mill was the result of the negligence of a fellow servant for which defendant was not liable.</p>

<p>1. Corporations — Ultra Vires — Injunction—Suit by Stockholder.</p> <p>A stockholder of a corporation cannot maintain an action to enjoin the foreclosure of a deed of trust to corporate property-executed by the president and secretary of the corporation, on the ground that it was executed without authority and for the private benefit of the president, without first showing that proper effort had been made to have the action brought by the corporation and that the officers of the corporation had refused to bring the action, and that he had also exhausted all reasonable efforts to obtain relief through the stockholders as a body or that such efforts would be unavailable.</p> <p>2. Same.</p> <p>Where a corporation was enjoined from bringing any action to prevent a foreclosure sale under a deed of trust to corporate property, the injunction was binding on the stockholders and prevented them from bringing any such action.</p>

<p>1. Negligence — Master and Servant — Assumption of Risk.</p> <p>An employee assumes all the risks incident to his service which arise from defects or imperfections in the thing about which he is employed of which he had knowledge or means of knowledge equal to that of his employer.</p> <p>2. Same — Mines and Mining.</p> <p>The workings of defendant’s mine consisted of a tunnel connecting with a shaft so that a draft of air passed into the tunnel and out at the shaft. A bunk house was situated at the mouth of the tunnel consisting of a small building on each side, the space between being roofed over and forming the entrance to the tunnel. No special means were provided for extinguishing or checking fire. A fire occurred in the bunk house and was communicated to the timbers in the tunnel and caused the death of plaintiff’s husband who was at work in the shaft. Deceased had experience in the work about mines and had been in de-. fendant’s employ one month sleeping in the bunk house, and. never made any complaint as to the dangerous condition of the mine, and defendant had made no promise in reference thereto. Held, that deceased assumed the risk arising from the location of the bunk house at the mouth of the tunnel and plaintiff was not entitled to recover from defendant damages for the death of her husband.</p>

<p>1. Appellate Practice — Findings—Conflicting Evidence.</p> <p>A finding of the trial court upon conflicting testimony which is not manifestly against the weight of the evidence and where there is sufficient evidence to support it, is conclusive on the appellate court.</p> <p>2. Contracts — Employment by Year — Evidence—Custom.</p> <p>In an action by a traveling salesman against a wholesale merchant for balance of his salary under a contract of employment “for á period of one year for- the season commencing' December 1st,” where defendant contended that plaintiff had. not worked out the entire year, evidence of the known custom of trade in that line of business was admissible to show what constituted the season for traveling salesmen and when such season ended.</p>

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

<p>Life Insurance — Fraud—Action for Premium — Counterclaim — • Estoppel.</p> <p>Plaintiffs as insurance agents contracted witli defendant to furnisli defendant a certain specified kind of policy of insurance and for the first year’s premium defendant executed two promissory notes due at different times. When the policy was delivered one of the plaintiffs pretended to read to defendant a part of .it which, indicated that it was in accordance with the agreement and told defendant that such was the case. Relying upon plaintiff’s representations defendant paid the first note and laid the policy away without reading. In an action hy plaintiffs on the second note nine months after the delivery of the policy, defendant pleaded fraud practiced upon him in delivering to him a different policy than that represented and set up a counterclaim for the sum paid on the first note. Held, that plaintiffs were not entitled to set up in defense of their own wrong that defendant was estopped to object to the policy because of his negligence in not objecting thereto for an unreasonable length of time, and it was error to dismiss defendant’s counterclaim on that ground.</p>

<p>Corporations — Liability of Stockholders — Mining Claims — Failure „ to Discover Mineral — Exchange for Capital Stock.</p> <p>Where the locator o£ certain mining claims on which no discovery of mineral had been made transferred the claims to a corporation in exchange for the paid up capital stock of the corporation, the locator having acquired no right to the claims could convey none to the corporation, and having transferred nothing of value to the corporation in exchange for the capital stock received by him, he was liable for the debts of the corporation to the amount of the value at which said claims were received by the corporation.</p>

<p>Fraud — Transfer of Property to Corporation — Possession—Attachment — Innocent Purchaser — Preferred Creditor.</p> <p>Where a partnership which was indebted to a greater amount than the'value of its assets organized a corporation to which the firm transferred its assets,, there being no apparent change in the conduct and management of the business, the same member of the old firm who had charge prior to transfer to the corporation having charge afterwards, the transfer was in fraud of creditors and the property transferred was subject to attachment as the property of the old partnership. And a creditor of the old firm who assisted in the organization of the corporation and purchased a half interest therein with full knowledge of the facts was not an innocent purchaser, neither was lie entitled to protection as a preferred creditor.</p>

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

<p>Sales — False Representations — Transfer to Innocent Purchaser— Replevin.</p> <p>Where a party obtained possession of a typewriter by false and fraudulent representations that he was agent for another party for whom he was making the purchase and after so obtaining possession sold it to an innocent purchaser, the party who obtained it by fraud acquired no title and conveyed none to the innocent purchaser, and the owner was entitled to recover the same from such innocent purchaser by replevin. '</p>

<p>1. Cities and Towns — Sewer Taxes — Failure to Record Tax Sales —Estoppel.</p> <p>Where' a special sewer tax was assessed against a city lot but no record thereof was made either in the office of the county treasurer or county clerk, and twelve years • after such assessment was made the city attempted to enforce its lien by causing said lot to be sold for said tax, the city was estopped to assert its tax lien as against a purchaser of the lot who purchased without notice of such tax and after an examination of the records for tax liens, and who received no notice of the tax or the tax sale until the purchaser at the tax sale applied for a deed upon his tax sale certificate. The holder of the tax sale certificate was not entitled to a deed and the tax lien and certificate should be annulled.</p> <p>2. Cities and Towns — Sewer Taxes — Tax Sales — Caveat Emptor.</p> <p>The rule of caveat emptor applies to a purchaser at an invalid tax sale of a city lot for delinquent sewer taxes and neither the purchaser nor his assignee of the tax sale certificate is entitled to recover from the city the amount due upon such certificate.</p>

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

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

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

<p>Forcible Entry and Detainer — Jurisdiction of Court of Appeals.</p> <p>The court of appeals has’ jurisdiction, to review on appeal final judgments of county courts in suits under the forcible entry .and detainer act. ^</p>

<p>Opinion Followed.</p> <p>This case is affirmed on the opinion in the case of United Oil Co. v. Roseberry, -3.0 Colo. 177.</p>

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

<p>Appellate Practice — Exceptions—Assignment of Errors.</p> <p>Errors assigned to the admission of evidence and to the final judgment will not he considered on review, where no exception was taken to the ruling of the court admitting the evidence nor to the judgment.</p>

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

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

<p>Appellate Practice — Final Judgments — Assignment Proceedings.</p> <p>An order in an assignment proceeding denying a motion cf attorneys selected by a majority of the creditors to .represent the creditors of the estate, to have their appointment made a matter of record and the assignee instructed to recognize them as attorneys for the estate and to give them all business where an 'attorney’s services were needed in said assignment proceeding, was not such final judgment as may be reviewed by the court cf appeals either upon appeal or writ of error.</p>

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

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

<p>1. Mandamus — Appellate Practice — Jurisdiction of Court of Ap-</p> <p>peals.</p> <p>The court of appeals has jurisdiction to review either on appeal or writ of error a final judgment of an inferior courf of record in a mandamus proceeding.</p> <p>2. Elections — State Board of Canvassers — Jurisdiction — Man- ■ damus.</p> <p>The duties of the state board of canvassers in canvassing the returns of an election for representative in the general assembly are purely political and governmental and the courts have no jurisdiction to control its action therein by mandamus.</p> <p>3. Same — Discretion.</p> <p>Even if the courts had jurisdiction to mandamus the state board of canvassers the writ would lie only to command the board to act, and not to control their discretion by commanding them how to act in a case where there were presented to them what purported to be two sets of abstracts of votes each claiming to be the correct one.</p> <p>4. Mandamus — Anticipation.</p> <p>The writ of mandamus will not issue in anticipation of an omission to perform a duty or because the relator fears there will be an omission, but there must be shown an actual failure or refusal to perform the duty before a writ of mandamus can issue to compel its performance.</p>

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

<p>Contracts — Deeds—Assumption of Encumbrance of Grantee.</p> <p>Plaintiff and J. exchanged real estate. At the request of a' real estate agent who acted for.J. the deed was made by plaintiff to defendant and contained a clause whereby the grantee assumed the payment of a mortgage encumbrance thereon. Defendant had no interest in the transaction and her name was inserted as grantee without her lmowledge or consent. The real estate agent placed the deed on record and notified defendant of the use of her name as grantee but said nothing about the assumption of the mortgage. Afterwards the real estate agent prepared a deed which defendant executed conveying the land to another party. The mortgage was foreclosed and failing to sell for enough to pay the mortgage plaintiff was compelled to pay the balance. Held, that defendant was not liable on the agreement in the deed to assume the- mortgage and plaintiff could not recover in an action-against defendant for the amount he was compelled to pay.</p>

<p>1. Attachment — Fraud—Instructions—Evidence.</p> <p>In an attachment suit where there is no evidence that the defendants fraudulently contracted any part of the indebtedness involved in the suit, the court should not submit such question to the jury.</p> <p>2. Estates of Decedents — Loan of Funds — Fraudulent Conveyance — Consideration—Attachment.</p> <p>Where the sole legatees of an estate, consisting of personal property against which there were no debts, the legatees being of age, before any distribution was made authorized the executor to loan the funds belonging to the estate to a partnership composed of the executor and another party, the loan created a debt from the partnership to the legatees, that was a sufficient consideration to sustain a transfer of the property of the partnership to said legatees as against the attaching creditors of the partnership.</p>

<p>1. Sales—Negligence of Purchasei—Mistake of Seller.</p> <p>Where plaintiff sold to defendant wheat supposing that he 'was selling smutty, no-grade wheat and under such circumstances that he was justified in such supposition and defendánt ought to have known that plaintiff was acting upon such supposition, and defendant either knowingly or negligently permitted plaintiff to act upon such supposition to plaintiff’s disadvantage, the result is the same as if the transaction had been the deliberate and intentional act of both parties and defendant is liable for the agreed price.</p> <p>2. Sales — Evidence.</p> <p>Evidence examined and held sufficient to establish a sale of smutty wheat and the purchaser’s liability for the agreed price.</p>

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

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

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

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

<p>1. Pleading — Sufficiency of Complaint — Demurrer.</p> <p>If a complaint states facts sufficient to entitle plaintiff to . recover in any sum it is good as against a general demurrer although it may not state a cause of action for the full amount claimed.</p> <p>2. Estates of Decedents — Executors—Power to Sell Land — Em-</p> <p>ployment of Agent — Commission.</p> <p>YThere a will empowers an executor to sell land .the executor has power to employ an agent to aid him in effecting such sale and to contract to pay the agent commission, and an agent so employed who effects a sale may maintain an action against the executor as such for his commission. The amount of commission that an executor may contract to pay an agent is not limited by section 4805, Mills’ Ann. Stats., prescribing the compensation of executors for selling land.</p>

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

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

<p>1. Juries — Equitable Action — Suit to Cancel Deed.</p> <p>An action to cancel a deed on the ground of fraud in its procurement is an equitable action and it is discretionary with the court whether or not issues of fact shall be submitted, to. a jury, and a denial of a demand for a jury trial is not error.</p> <p>2. Fraudulent Conveyance — Husband and Wife — Mortgages — Notice.</p> <p>A conveyance of real estate by a husband to his wife in settlement of a bona fide debt owing by him to her is good as against a prior unrecorded mortgage executed by the husband to the same property, where the wife accepted the conveyance in good faith and without notice or knowledge of facts sufficient to charge her with notice of the mortgage.</p>

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

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

<p>Injunction — Action Upon Bond — Attorneys’ Fees.</p> <p>Where an injunction was merely ancillary to the principal relief demanded in the action and a demurrer to the complaint and motion to dissolve the injunction were filed at same time and upon hearing the demurrer was sustained and the injunction dissolved, in an action upon the injunction bond to recover attorneys’ fees in the matter of dissolving the injunction the plaintiff is entitled to recover only the value of the attorneys’ services rendered in securing the dissolution of the injunction and not for any services rendered in the preparation and, trial of the main case and, where the evidence was only as to the value of the entire services rendered in the case without any attempt to show what part was 'properly chargeable for' services in securing the dissolution, the plaintiff was not entitled to recover.</p>

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

<p>1. Corporations — Powers of Agent — Bills and Notes.</p> <p>The general manager of a corporation organized for the purpose of dealing in and raising cattle and other stock and acquiring lands and other property necessary to its business, who had charge of the corporation’s business with authority to represent the company in such transactions as are usually incident to such business, has no implied authority to execute in the name of the corporation a promissory note and bind the company thereby.</p> <p>2. Same — Notice.</p> <p>The fact that the manager óf a corporation who executed an unauthorized promissory note of the corporation was also a director would not charge the corporation with notice of the unauthorized act.</p> <p>3. Same.</p> <p>Authority of an agent to purchase property for a corporation and to contract an indebtedness against the corporation therefor would not include the power to execute and bind the corporatiqn to pay a promissory note due in eighteen months with a higher rate of interest than the legal rate and ten per cent, attorney’s fee if collected by an attorney.</p>

<p>Appellate Practice — Judgments—Nonsuit.</p> <p>Where an action was dismissed at the cost of plaintiff the defendant cannot have the judgment reviewed on appeal. An appeal to the court of appeals from such judgment will he dismissed and the cause docketed on error.</p>

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

<p>1. Pleading — Certificate of Indebtedness — Interest.</p> <p>A written certificate of indebtedness will draw interest at eight per cent, per annum. In an action upon such certificate an answer that merely denies that any interest is due or owing on the indebtedness does not put in issue any material allegation of the complaint.</p> <p>2. Pleading — Attachment—Affidavit—T raverse.</p> <p>In an attachment proceeding the attachment issues are preseated by the affidavit in attachment and the traverse thereto. The allegations in the affidavit cannot be put in issue. by the answer to the complaint.</p> <p>3. Same.</p> <p>An affidavit in attachment dated December 8, alleging that defendant is about to fraudulently transfer its property to hinder creditors, is not put in issue by a traverse dated December 19, wherein it denies that it is about to do so. Such traverse is not a denial that it was about to fraudulently transfer its property at the time the affidavit was made.</p> <p>4. Same — Amendment—Discretion of Court — Appellate Practice.</p> <p>An application to amend a traverse of an attachment affidavit is addressed to the discretion of the court, and where it does not appear from the record upon what the court acted in denying such application ■ the appellate court will not review its action thereon.</p>

<p>.Mines and Mining — Lease—Assignment—Consideration.</p> <p>Where a mining lease for a certain term was assigned, the assignee agreeing to work- the mine and to pay the consideration out of the net proceeds, he was not required to work the mine continuously through the entire term of the lease at a loss, or else become absolutely liable for the amount of the consideration, but his obligation was fulfilled when he worked the mine sufficiently to show that it could not be worked at a profit. And where the assignment contained no provision against subletting, the assignee by reassigning the lease did not violate his contract nor put it out of his power to comply with it so as to make him absolutely liable for the amount of the consideration.</p>

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

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

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

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

<p>1. Negligence — Invisible Danger — Duty of Employer to Warn Employee.</p> <p>Where an employer inducts an employee into ah employment which involves exposure to some invisible danger, no matter what the cause or nature of the peril may be, it is the duty of the employer to impart to the employee his own knowledge of the situation, and his failure to do so would be negligence which would render the employer liable for an injury to the employee resulting from such invisible danger.</p> <p>2. Same — Striking Employees.</p> <p>Where an employer employed an employee knowing that such employee was in danger of being injured by striking employees and the employee had no knowledge of such danger, and the employer failed to warn him of the danger, the employer is liable for an injury to such employfee by the striking employees.</p>

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

<p>1. Bills and Notes — Venue.</p> <p>Where a promissory note was made payable at a certain bank, the county in which such "bank is situated was the proper county for trial of an action thereon, although defendants resided and were served with summons in another county and an application to change the place of trial to the county of defendants’ residence was properly denied.</p> <p>2. Bills and Notes — Endorsements—Evidence—Book Entries.</p> <p>In an action upon- a promissory note the book of original entries of a bank is admissible in evidence to corroborate endorsements of payments made-upon the note.</p> <p>3. Bills and Notes — Limitation—Payment—Joint' Makers. Payments made upon a promissory note by one of two joint</p> <p>makers will not stop the running of the statute of limitation as to the other maker.</p>

<p>Mandamus — Bills of Exception.</p> <p>Mandamus may issue to compel a judge to sign a bill of exceptions after it has been settled, but tbe duty of settling tbe bill, that is, determining what it shall embrace, is judicial, and where a judge refuses to sign a' bill because it does not include matter which he thinks ought to be included mandamus will not issue to compel him to sign it.</p>

<p>1. Agency — Evidence—Declarations of Agent.</p> <p>Neither the fact of agency nor the extent of authority can be proved by the declarations of the alleged agent.</p> <p>2. Agency — Evidence.</p> <p>Evidence examined and held not sufficient to establish agency so as to make defendant, the alleged principal, liable for goods purchased from plaintiff by the allegéd agent.</p> <p>3. Statute of Frauds — Promise to Pay Debt of Another — Landlord and Tenant.</p> <p>Where plaintiff sold to a tenant goods and charged them upon his hooks to such tenant, a promise hy the landlord to pay such account, made without consideration, was a promise to pay the debt of another within the statute of frauds, and' was not binding unless made in writing.</p> <p>4. Same — Instructions—Not Based on Evidence.</p> <p>Where defendant verbally promised to pay to plaintiff the store account of his tenant after the goods had been sold and charged to the tenant, and there' was no evidence of any consideration passing from plaintiff to defendant or that plaintiff released the tenant and accepted defendant as his debtor, an instruction to the effect that where there is a consideration for the promise to pay, it is unnecessary for it to be in writing and that to warrant a finding for plaintiff it must appear that he accepted defendant and released-the tenant, was prejudicial error.</p> <p>5. Practice — Evidence—Discretion of Court.</p> <p>The form of questions and method of examination of witnesses are largely within the discretion of the trial court, and unless there is an arbitrary abuse of such discretion, the trial court’s action in such matters will not be held to he reversible error.</p>

<p>Bills and Notes — Collateral Security.</p> <p>Where certain notes were placed in a bank for collection to secure first a liability of the cashier of the bank upon a bond of the holder of the notes, and second, to secure a note by the holder to plaintiff, and the bank agreed to collect said notes and so apply the proceeds, when the bank had collected sufficient money on said notes to satisfy the liability of the cashier and pay off plaintiff’s note plaintiff could maintain an action against the bank for the amount of his note, and he was not required to wait till the bond upon which the cashier was liable -was actually paid off before bringing his suit. ■</p>

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

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

<p>Corporations — Evidence.</p> <p>In an action against a corporation for goods sold to another corporation the testimony of the seller that the corporation to whom the goods ^ere sold was 'afterwards called hy the name of the corporation sued is insufficient to sustain a judgment against the corporation sued, where defendant’s evidence showed that the two corporations were separate and distinct and that defendant was not a successor of the corporation to whom the goods were sold.</p>

<p>1. Negligence — Master and Servant — Safe Appliances.</p> <p>If a master has furnished his servant with proper machinery and appliances for the performance of the work required of the servant it is no part of the master’s duty to see that the servant makes use of such machinery and appliances so furnished.</p> <p>2. Same — Repairing.</p> <p>Where a servant is employed to put a thing or place in a safe and suitable condition for use, it is not the master’s duty to have such place or thing in safe condition and good repair for the purpose of such employment.</p> <p>3. Same — Electric Railways — Linemen.</p> <p>An electric railway company who employed a lineman whose duty it was to repair its poles and wires and to go upon the poles for the purpose of taking down and putting up wires did not owe to such employee the duty to inspect its poles and inform him whether or not any of them were so decayed as to he unsafe to work upon-.</p> <p>4. Same.</p> <p>Plaintiff was employed by defendant, an electric railway company, as a lineman. Plaintiff had been engaged in the business of lineman and electric work several years and had been at' work for defendant for three months. Plaintiff was supplied with proper appliances for bracing and strengthening poles which he might be required to climb. Held, that defendant was not liable for an injury to plaintiff caused by a pole which had rotted at the ground breaking and falling while plaintiff was upon it for the purpose of repairing the wires, and which plaintiff had neglected to brace or prop before going upon it.</p>

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

<p>1. Practice — Inconsistent Positions — Election of Counts.</p> <p>■ Where plaintiff upon motion of defendant was required to elect which of two counts he would proceed upon, and defendant in making his motion and the court in acting thereon conceded that the count elected was upon contract, and throughout the trial the count was treated as upon contract, defendant will not he heard to say upon appeal, in order to secure an affirmance, that the count is in tort.</p> <p>2. Attachment — Action Upon Undertaking — Election of Counts.</p> <p>In an action upon an undertaking in attachment where plaintiff stated in one count a cause of action for the wrongful suing out of the writ and in another a cause of action for malicious prosecution in its issuance, it was error to require plaintiff to elect upon which of the two counts he would proceed.</p> <p>3. Practice — Election of Counts — Waiver.</p> <p>Where a plaintiff was erroneously required to elect as to which one of two counts he would proceed upon the error was not waived hy going to trial upon the count so elected.</p>

<p>1. Partnership — Accounting—New Trial — New Evidence.</p> <p>In an action by one partner against another for an accounting a new trial will not he granted on the ground of newly discovered evidence where the fact for which the new trial is ashed is that the partner in whose favor judgment was rendered has since the trial sold certain of the partnership property.</p> <p>2. Partnership — Accounting—Evidence—Harmless Error.</p> <p>In an action for an accounting between two partners where a vast number of exhibits were introduced before the referee by both parties, the judgment of the court will not he reversed for refusing to strike out certain exhibits, even though they Were incompetent, where the findings of the referee were warranted by other documentary and oral testimony introduced at the hearing.</p> <p>3. Appellate Practice — Referees—Findings.</p> <p>The findings of a referee upon conflicting evidence are entitled to the same consideration in the appellate court as the verdict of a jury or findings of the trial court.</p>

<p>1. Appellate Practice — Exception to Judgment — Evidence.</p> <p>Where the trial was before the court, an assignment of error that the judgment is against the weight of evidence will not be considered unless an exception to the judgment is made part of the record by bill of exceptions. An entry following the findings of the court and judgment stating that an exception was taken constitutes no part of the record.</p> <p>2. Appellate Practice — Bill of Exceptions — Motion for New Trial.</p> <p>An assignment of error based on a refusal to grant a new trial will not be considered unless the motion for new trial is made part of the record by bill of exceptions.</p> <p>3. Appellate Practice — Assignment of Errors — Evidence.</p> <p>An assignment of error based on the improper admission or exclusion of evidence will not be considered «where the assignment fails to point out any particular evidence improperly admitted or excluded.</p>

<p>1. Pleading — Contracts.</p> <p>In an action upon a written contract the complaint may allege the contract according to its legal effect or by setting it out in haec verba.</p> <p>2. Pleading — Contracts—Demand.</p> <p>In an action upon a contract to pay money an allegation that defendant failed and refused to pay the money is a sufficient allegation of demand, especially in the absence of a demurrer, and where it is apparent from the answer that a demand would have been unavailing.</p> <p>3. Continuance — Absent Witness.</p> <p>An application for a continuance on account of an absent witness who resides' in a different county from that of the trial is insufficient unless it appears that an order of court has been obtained authorizing service of a subpoena outside of the county where the trial is had.</p> <p>4. Same.</p> <p>An application for a continuance on account of an absent witness is insufficient where the affidavit fails to allege that there are no other witnesses by whom the facts can be proven. A statement that “affiant knows of no other witnesses by whom said facts can be proven, whose testimony can be so readily procured” was not sufficient.</p>

<p>1. Contracts — Option to Pay in Land or Money — Time.</p> <p>Defendant by contract dated January 10, 1893, stipulated to pay plaintiff a certain amount by the conveyance of certain land within the year 1893 and in case of failure to convey the land within the time stipulated, defendant was to become immediately upon the expiration of one year from date of the contract personally indebted to plaintiff for the sum stated. Held, that the time within which defendant had a right to pay the debt by the conveyance of land expired on December 31, 1893, and not on January 10, 1894.</p> <p>2. Contract — Option to Pay in Land — Demand for Conveyance— Description.</p> <p>Where defendant contracted to pay plaintiff a certain sum with an option to pay by the conveyance of land within a certain time, the land to be’selected by plaintiff, a demand by plaintiff, within the time, for a conveyance in which the land was described by definite boundaries on the south, east and west, and called for a line on the north parallel with the south line, and the width of the tract from north to south to be such as was necessary to make the amount of land he was entitled to Tinder the contract, contained a sufficiently definite description of the land to form the basis of a deed.</p> <p>3. Contracts — Option to Pay in Land — Absolute Liability.</p> <p>Where defendant upon a valuable consideration contracted to pay a debt due to plaintiff by a conveyance to plaintiff of certain land within a certain time and in case of failure to convey to plaintiff the land within the time limited, defendant to become personally indebted to plaintiff, upon a failure by defendant to convey the land within the time he became absolutely liable to pay plaintiff the sum stipulated in money, and not merely such damages as plaintiff might have sustained, and the fact that the debt was originally the debt of another does not alter the relations of the parties to the contract.</p>

<p>1. Statute of Uses — Conveyances—Trusts.</p> <p>The statute of uses (27 Henry VIII, chap. 10) is in force in Colorado, and where land is conveyed to one person for the use of or in trust for others, hy a deed which expresses a mere passive trust, the legal as well as the equitable title vests thereby in the cestuis que trust and the trustee takes nothing.</p> <p>2. Same — Judgment Liens.</p> <p>Where land was deeded to one person for the use of others by a deed which merely expressed, a passive trust and such deed was recorded, a title in fee was thereby vested in the cestuis que trust, and a transcript of judgment against the cestuis que trust being filed, the judgment lien thus created, in favor of the judgment creditors was superior to any secret lien or trust existing in favor of the trustee created by oral agreement between the trustee and the cestuis que trust of which the judgment creditors had no notice.</p> <p>3. Same — Attorneys’ Liens.</p> <p>Where land was conveyed to a trustee for the use of other parties by a deed which expressed a mere passive trust which deed was recorded, a judgment lien created hy filing a transcript of judgment against the cestuis que trust was superior to an attorney’s lien in favor of the trustee of which the judgment creditors had no notice.</p> <p>4. Attorneys’ Liens — Waiver—Contracts.</p> <p>An agreement between an attorney and his clients whereby the attorney at a sale of land, under a decree obtained by him for his clients was to purchase the property in trust for his clients and sell the same and out of the proceeds pay his fee and costs was a waiver of his attorney’s lien.</p>

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