Volume 2 — Colorado Court of Appeals Reports

The plaintiff, Talmai F. Godding, brought this action for damages sustained by reason of the defendant’s refusal to purchase certain hay according to the terms of a written agreement between the defendant and one John E. Godding, which had been assigned to the plaintiff with the'knowledge and consent of the defendant, and which contained a provision that it should hind the assigns of either party. The plaintiff recovered judgment and the defendant appealed.

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

<p>1. Divorce — Adultery a Bab.</p> <p>The plaintiff’s action for divorce was upon the grounds of desertion and non-support. Defendant joined issue and also filed a cross-complaint upon the ground of the plaintiff’s adultery. The proofs showed the defendant to be guilty of desertion and non-support, and the plaintiff to be guilty of adultery; held, that both complaint and cross-complaint should have been dismissed.</p> <p>2. Practice in Divorce Cases.</p> <p>It is of no consequence how the court obtains the requisite legal knowledge of the fact of plaintiff’s adultery. It may crop out of the proofs without having been pleaded, but must be acted upon by the court. If it shall appear, no divorce can be decreed.</p> <p>3. Grounds of Divorce — Equality of.</p> <p>In estimation of law, all grounds of divorce are of equal force and validity, notwithstanding supposed differences, in point of morals, in the gravity of the offenses involved.</p>

<p>1. Contract through Agent.</p> <p>Persons dealing with a corporation through an agent must, at their peril, advise themselves as to the -scope of the agency and powers of the agent.</p> <p>2. Agent — What Powers not presumed.</p> <p>The general manager of a mining and milling company has no power, by virtue of his office, to bind the company by contracts for the purchase of machinery.</p> <p>3. Ratification.</p> <p>The principal may, by ratification of the unauthorized act made in its behalf, make it its own and become liable thereon.</p> <p>4. New Triad — Eaidure of Proof — Ground for.</p> <p>While appellate courts will not disturb a judgment upon a mere question of weight or preponderance of testimony, yet when there is an absence of proof on some point which is fundamental to the recovery, neither verdict nor judgment is conclusive upon the appellate tribunal, and a new trial will be ordered.</p>

This action was commenced by Benjamin W. Robinson and wife against The Dolores Number Two Land and Canal Company and others, for the cancellation of certain deeds, injunction, appointment of a receiver, accounting, etc. Upon demurrer to the complaint, the action was dismissed. The plaintiffs bring error. The nature of the complaint is fully set forth in the opinion of the court.

<p>1. Judgment against Estate — Bights op Holder.</p> <p>Wliere a judgment creditor of a solvent estate postpones enforcement of lier judgment in consideration of an assignment'to her of one of several notes secured by deed of trust and given to the heir for a debt due the estate, and it is agreed that upon the payment of the note and interest when due, she will satisfy the judgment, she is not compelled to exhaust her remedy upon the note as a condition to her right to enforce the judgment against the heir.</p> <p>2. Heir — Liability op.</p> <p>The heir into whose possession an estate has come is to be excused from the payment of its debts only upon showing an insufficiency of assets.</p> <p>3. Estoppel.</p> <p>The doctrine of estoppel by election cannot be invoked by one who has suffered no disadvantage by reason of anything in the premises.</p>

<p>1. Findings of Fact must be upon Evidence.</p> <p>Tlie convictions of the judge based upon personal observations, cannot take the place of competent evidence.</p> <p>2. Constitutional Law — Taxation.</p> <p>The Constitution (art. 10, sec. 3) requires uniformity of taxation upon valuation.</p> <p>3. Constitutional Construction.</p> <p>A rule or mode of taxation of property having been prescribed by the Constitution, all others are thereby excluded.</p> <p>4. Municipal Powers — License, Fees, etc.</p> <p>A municipal authority cannot, under its power to license, regulate and tax an occupation or business, tax the property engaged in such ■business.</p> <p>5. Municipal Discretion.</p> <p>When a city is vested with power to impose license fees, without express limitation as to the amount thereof, much is left to municipal discretion, and its exercise will not be interfered with by the courts unless it is abused. Semble, an injunction should never be issued against a municipal corporation unless the right and power are free-from doubt.</p> <p>6. Jurisdiction on the Court op Appeals.</p> <p>The court of appeals is not a court of final jurisdiction when constitutional questions are involved. Its judgment upon such questions is subject to review by the supreme court.</p>

<p>1. Statutory Action.</p> <p>A party injured by fire set out or caused by the operating of a line of railroad, has 'an action for his damages, and is not required to avail himself of the provision of the act of March 31st, tóSL</p> <p>2. Statutory Construction.</p> <p>The object of the amendment of the statute (Sess. Laws 1887, p. 368) was to facilitate adjustment of losses and prima facie establish the amount of damages sustained by reason of the fire.</p> <p>3. Pleading — Under Statute.</p> <p>A complaint containing a statement of facts constituting a cause of action under the statute is sufficient. No reference to the statute under which the action is brought is necessary.</p> <p>4. Negligence — When not required to be shown.</p> <p>As to the contention that no recovery could be had in this action without proof of negligence, held, that the necessity of such proof is obviated by the statute. U. P. R. R. Co. v. De Busk, 12 Colo. 296, so construing the act and declaring it to be constitutional, followed.</p> <p>5. Proof — Quantum of.</p> <p>In cases of this kind, juries should not be allowed to infer or presume, for want of positive proof to the contrary, that the fire was communicated by the operating of the railroad. The proof required upon this point must be sufficient to exclude the probability of the fire having been caused by some other means.</p> <p>O. New Trial — When granted.</p> <p>Where there is no competent evidence upon which a verdict could have been predicated, and where it must have been the result of prejudice, it should be set aside.</p> <p>7. Offers to compromise.</p> <p>An unaccepted offer to compromise is not admissible in evidence.</p>

<p>CONTBAOT FOB SATISFACTOBY SEBVICE — HOW COrrSTBUED.</p> <p>Tlie appellee entered into a contract with the appellants, by which he was employed for one year at a stated monthly salary, and by which he agreed to give his entire attention to the business in which he was employed, and “ to render good and satisfactory service; ” held that his employers might discharge him at any time his services were unsatisfactory to them, without incurring liability in damages. The contract required performance not only of such services as his employers ought to have been satisfied with, but such as actually were-satisfactory to them. BisseLb, J., dissenting.</p>

This action was commenced by Henry Webber against William H. Petty, to determine the right to a title to a lot in the town of Aspen, the site of which had been entered by the county judge under the'provisions of sec. 2387 U.-S. R. S.^ in trust for the use and benefit of the occupants thereof. The defendant recovered judgment, and the plaintiff appealed.

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

<p>1. Secret Liens.</p> <p>A contract providing for a secret lien may be good as between tbe parties, but is void as against creditors.</p> <p>2. Contract of Sale. — Reservation of Title.</p> <p>A provision in a contract of sale that the vendor shall retain the title to the chattels sold until payment of the price is, as against creditors of the vendee, void, when he is invested with possession of the thing sold and the indicia of ownership. Such secret liens are constructively fraudulent as against creditors of the purchaser.</p>

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

Action for damages sustained by the plaintiff by reason of a criminal prosecution instituted against him by the defendant. The plaintiff recovered judgment, and the defendant appealed. The facts are fully stated by BiSSELL, J. Sometime in 1888 Andrew Whitehead filed a complaint before Sales, a justice of the peace in Arapahoe county, charging Alvin.L. Jessup with the crime of obtaining money by false pretenses.

On the 5th of August, 1884, a suit was commenced against Moore, Bracken and Daniel, by divers parties who claimed an interest in the subject-matter of the controversy stated in the complaint. The present appellants succeeded to the interest of the then plaintiffs in the suit, and the litigation is proceeding in their name. The abstract does not contain the complaint, but to make the case intelligible in some particulars, reference was made to the one in the transcript.

<p>Yebdict upon Conflicting Evidence.</p> <p>The court will uot interfere with the verdict when it appears that it was rendered upon conflicting testimony, and it does not appear that the evidence was not fairly considered by the jury.</p>

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

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

<p>New Tbial not granted, when.</p> <p>A judgment which is well supported by testimony will not be disturbed upon the ground that the finding was against the weight of the evidence.</p>

<p>1. Practice — Time oe filing Demurrer.</p> <p>A demurrer to an answer cannot be filed after expiration of the time prescribed by statute, and after a motion by defendant for judgment on the pleadings, without leave of court. The court was not bound to consider a demurrer so filed.</p> <p>2. Measure of Damages.</p> <p>Plaintiff held a chattel mortgage upon certain cattle, and obtained possession of the cattle by replevin against the mortgagee. He sold the cattle for more than the amount of the claim secured by the mortgage. Held, that the defendant might recover in the replevin case the amount received for the cattle in excess of the debt.</p>

It appears that some time prior to the year 1882 (date not shown), three individuals, Leese, Davis and Bingel, constructed a small ditch some five miles long to convey water to irrigate their… Held: the head-gate, keys, etc., to plaintiff company.

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

<p>1. Draft, when not Payment.</p> <p>The defendant sent a draft to plaintiff, as a payment on account. It was not paid, and plaintiff was guilty of no laches in his efforts to collect, hut returned it within a reasonable time. Held, that defendant was not entitled to credit for its amount.</p> <p>2. Judgment when admissible in Evidence.</p> <p>In an action on an account, evidence of a judgment previously obtained by the plaintiff against the defendant, included in the account, is admissible, where it appears that the judgment was obtained at the request of the defendant, and upon an understanding that he was to pay a certain portion monthly and not to be pressed for payment in full.</p> <p>3. Objections and Exceptions, when necessary.</p> <p>No objection to testimony will be considered on appeal when the evidence was admitted without objection or exception.</p>

Complainant alleges that he is a citizen of the United States and over the age of 21 years; that on the 20th day of May, 1887, he entered 'upon the unoccupied and unappropriated public mineral domain of the United States, and at the said unoccupied point of his entry sunk ,a shaft to.the depth of. more than ten feet below.the lowest part of the rim thereof, and therein and thereby discovered and disclosed a well-defined body of mineral bearing rock in place, containing…

<p>1. Garnishment — Proof.</p> <p>A creditor who attempts, by garnishment, to enforce an alleged liability of one who owes his debtor, must show by satisfactory proof that the garnishee is indebted to the judgment debtor.</p> <p>2. Burden of Proof.</p> <p>When issue is joined upon the garnishee’s indebtedness, the burden of proof is upon the attaching creditor.</p> <p>3. Assignment of Future Earnings.</p> <p>An employee having assigned his earnings or wages for a time to come, and his employer having accepted the assignment, the employer’s liability is to the assignee, and garnishment cannot be maintained against him by a creditor of the assignor.</p>

<p>1. Order Sustaining Demurrer is not a Final Judgment.</p> <p>An order sustaining a demurrer is not a final judgment from whicl an appeal can be taken, or to wbieb a writ of error can be prosecuted.</p> <p>2. Writ oe Error, when dismissed.</p> <p>It appearing from tbe record tbat a demurrer to tbe complaint bad been sustained, but tbat no judgment bad been entered tbereon determining tbe rights of tbe parties, tbe court, on its own motion, dismissed tbe writ of error.</p>

<p>1. Cancellation of Deeds, when not decreed.</p> <p>Tlie complaint showed that the state had held the fee to a portion of a certain “school section,” that it had been leased to D. who transferred the leasehold interest to B., by whom valuable improvements were made upon the premises.. That defendant T. applied to the land board to purchase the premises, and, in his application, made many false representations as to the value of the improvements, the condition of the premises and their abandonment. That, without an appraisement of the improvements, the land was patented to him, he paying to the board for the benefit of .the owner of the improvements, (in addition to the purchase price) $150, the amount .he represented their value to be. The relief demanded was the cancellation of the patént to T. and various mesne conveyances by him and his grantees; — to the end, apparently, that the board andT. might be compelled to protect B. in his improvements and secure ' the payment of their value: Reid, that no cause of action was stated in favor of the people.</p> <p>2. Appraisement is not a Condition precedent to right to sell. An appraisement of the improvements of a lessee upon school land and a deposit of a receipt of the lessee showing'payment by the purchaser of the value of the improvements, is not a condition precedent to the power of the land board to complete the sale. Such provisions are for the benefit of the lessee, and do not constitute limitations upon the power of the board.</p>

<p>1; Pkospecting Contbaot — Intebest acquired.</p> <p>Two parties entered into an agreement to do prospecting work which contemplated a joint prosecution of the enterprise until a valid location was made. One quit the work before the discovery of mineral and the other carried it on until a discovery and a valid location was made. Held, that no interest in the property vested in him who had retired, unless he had provided therefor by an agreement with the discoverer.</p> <p>2. Evidence op Pacts, not admissible without Pleading. Evidence of facts not pleaded is not admissible, and if admitted will not support a decree.</p> <p>3. Laches.</p> <p>A delay of seven years to bring an appropriate action to recover his interest in a mining claim is an equitable bar to an action, where the plaintiff had failed to contribute labor or money to the enterprise, even if the discovery was made by one with whom he had a contract giving him such interest.</p> <p>4. Same.</p> <p>Reasonable diligence is always necessary to move a court of equity. The strongest equity may be forfeited by laches or abandoned by acquiescence.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p>The facts are fully stated in the opinion of the court.</p>

<p>1. Decedent’s Debt, when chargeable to Widow.</p> <p>A widow of a deceased debtor cam be made liable for liis debt only by an assumption thereof and an absolute promise, upon a consideration, to pay it, or by reason of her succeeding to the estate of her husband and failure to pay the debt.</p> <p>2. Statute of Frauds.</p> <p>Mrs. B., who on account of the illness of her husband was attending to his business, wrote to his creditor the following letter: — “Mr. Hoffer. You will find enclosed fifty dollars, all I can raise at present. I hope to be able to give you more very soon. Please give me credit, and oblige. Mr. Bobm is home sick. Mary Bohm.” Held, that the letter was insufficient, under the statute of frauds, to bind her to the payment of her husband’s debt.</p>

Appellant was plaintiff below. The suit was brought for equitable relief on the following facts alleged in the complaint :— That on September 8, 1883,- plaintiff was the owner of certain lots in the city of Denver and in possession of them, and at the time of bringing suit was still in possession, never having resigned it. That the defendants claim an estate or interest in the property adverse to plaintiff.

<p> JError to the District Court of Otero County. </p>

<p> Error to the County Court of Otero Comity. </p> <p>The case is stated in the opinion of the court.</p>

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

One F. M. Agnew was the owner of a sawmill and appliances, and engaged in the manufacture of lumber in El Paso county. In the spring of 1882 he was indebted to plaintiff -in error in a sum exceeding in the aggregate $2,500. One thousand two hundred and twelve dollars was evidenced by two. promissory notes bearing date September 10, 1880, the last of which became due August 10, 1881, which • were /secured by chattel mortgage upon the property in- controversy.

<p> Error to the District Court of Arapahoe County. </p> <p>The facts áre fully stated in the opinion of the court.</p>

In the early summer of 1887, Mark Bice, the appellant, bought from Troxwell a drug store situated oh the córner of’ 18th and Curtis -streets in the city of Denver. He ran'- the store in his own name until sometime in August of that year, when he formed some sort of a business connection with a person by the name of Watson.

<p>1. Lex Loci Contbactus.</p> <p>A contract which, by the law of the place where made is valid inter partes and as against third persons, is valid in this state notwithstanding it would have been adjudged invalid if it had been entered into within its jurisdiction.</p> <p>2. Same — Conditional Sale.</p> <p>In this state there can he as against third persons, no sale of personal property with a valid reservation of the title or lien for the benefit of the vendor, nevertheless such conditions in the sale of property in a state where they are allowable will, upon the removal of the property into this state, he upheld.</p>

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

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

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

<p>Error bo the District Court of DitJcin,. County.</p>

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

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

<p>1. CONTBIBUTOBY NEGLIGENCE.</p> <p>The return of an experienced miner to the shaft when an explosion was expected to occur, raises a question of contributory negligence on his part which should have been submitted to the jury.</p> <p>2. Same.</p> <p>When a miner, knowing that the means of ascending and descending the shaft in which he is employed are defective and dangerous, continues in the employment after the lapse of a reasonable time for providing safe appliances, he assumes the risk incident to the use of such defective means, notwithstanding he made complaint and was promised that the defect would be remedied promptly.</p> <p>3. Evidence.</p> <p>Where the testimony of a witness is discredited by evidence that he has made statements out of court inconsistent with his testimony, it is not competent for the purpose of sustaining him to prove that at other times he made, out of court, statements which are consistent with his testimony.</p>

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

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

<p>1. Pleading — Amendment.</p> <p>A complaint which fails to allege the time when the note sued upon is payable may he amended, and unless such amendment is prejudicial to or prevents defendant from interposing a proper defense, a cohtinuance of the cause for the purpose of allowing defendant to amend its answer, will not he granted.</p> <p>2. Same.</p> <p>Courts are liberal in allowing amendments when the cause of action is not changed, and where the complaint fails to state when the note sued on is payable, but the note is overdue, and the maker knows it to he the note he will be called upon to defend against, an amendment whereby the time of payment is inserted, does not change the character of the action.</p>

<p>1. Evidence — Mining Partnership.</p> <p>Deeds and contracts between parties, although insufficient in themselves to show a mining partnership, may, nevertheless, be admissible as elements of proof to fix liability upon the parties as partners.</p> <p>2. Mining Partners, Liability' of.</p> <p>A mining partnership having existed between the parties, they are legally bound for the debts legitimately contracted by the concern during the time the partnership existed.</p> <p>3. Written Assignment, when not required.</p> <p>The plaintiff being the owner by actual purchase of the claims sued on, need not, in order to recover, show a written assignment thereof.</p> <p>4. Practice on Appeal.</p> <p>Assignments of error not argued by counsel in their briefs will not be considered by the court.</p>

<p>Proof Wanting, Judgment Reversed.</p> <p>In an action for goods sold, the defendant set up as a defense that in the purchase he acted mei-ely as the agent of other parties, hut on the trial failed to introduce evidence in support of the pleading. Meld, on appeal from a judgment in his favor, that it should be reversed, and further, that a reversal upon this ground does not violate the familiar rule that this court will not disturb a verdict rendered upon conflicting evidence.</p>

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

Defendant in error applied to the district court for a writ of mandamus commanding plaintiff in error to draw a warrant upon the treasurer for the payment of 18,733.81, alleged to be due defendant for public printing.

<p>1. Specific Performance.</p> <p>A contract to be specifically enforced must be definite and certain and upon a valuable consideration.</p> <p>2. Consideration&emdash;Seal.</p> <p>A promise against a promise is not, in tbis class of cases, a good con-sideration, nor does a seal import a consideration.</p>

<p>1. Justices of the Peace — Jurisdiction.</p> <p>Under seo. 1 of the act of 1885 (p. 372), which provides that all justices of the peace and police magistrates shall have jurisdiction of cases arising under any ordinances passed pursuant to that act, and that the city council, or a board of trustees, may designate one justice of the peace who shall have jurisdiction exclusively, justices of the peace are not divested of jurisdiction in the absence of an act by the town specially conferring exclusive jurisdiction on some particular justice.</p> <p>2. Evidence — Burden of Proof.</p> <p>An objection to the introduction of an ordinance in evidence on the ground that the “ ayes and nays had not been called upon its passage,” must be supported by the proof of such fact, otherwise the objection will not be sustained.</p> <p>3. Ordinance — Construction of.</p> <p>Under an ordinance providing “no person shall engage in quarreling or fighting, nor shall ask, invite or defy any other person to fight or quarrel; ” held, that a proprietor of a store had no right-to use force to expel- from the room one who refused to depart when ordered so to do.</p> <p>4: Same.</p> <p>An ordinance being local, its most authoritative construction should come from local sources, and when more comprehensive than the ; common law, it cannot be tested by common law rules.</p>

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

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

In 1878 Albert J. Johnson, Tipton, Obey and Porterfield discovered and located the “Sierra Nevada” lode. Johnson-' became the owner of a quarter interest in the claim. This interest remained in Johnson until the 6th of August, 188-3, when he deeded it to Peter Campbell, William’s brother. This deed was procured to be executed by William Campbell to deprive the federal court of its jurisdiction of a pending Litigation with tire iron mine.

This is a suit brought upon a contract for the recovery of certain moneys claimed to be due for lumber alleged to have been delivered to the defendants, McPhee & McGinnity. The cause was tried to the court without a jury and resulted in a judgment of nonsuit against plaintiff.

<p>1. Settlement — Due Bill — Pboof.</p> <p>Where, in seeking to defeat recovery of the amount of a due bill given in a settlement, defendants failed to state or plead that what they proposed to prove was not known and fully understood by them at the time of settlement and delivery of the bill, such proof is properly rejected.</p> <p>2. Due Bill — Defense</p> <p>To warrant the admission of such testimony defendants must interpose the defense of a breach of contract, and show, or ofíer to show, that the due bill was executed by them upon a misrepresentation of facts, against which they were not in position to guard themselves.</p>

<p>1. Mechanics’ Lien.</p> <p>A mechanic who, under contract, bestows labor upon a chattel for its improvement is entitled to retain the possession thereof until he has been paid for his services, but performance of the contract is essential to the creation of the lien and the existence of the right of improvement.</p> <p>2. Mechanic — Who is.</p> <p>A tailor to whom cloth has been delivered to be made into garments is a mechanic.</p> <p>3. Replevin — -When it lies.</p> <p>Coats made by defendant of cloth furnished by plaintiff for that purpose cannot be replevied before completion of the garments, where the evidence fails to show that the defendant violated his contract, or that plaintiff paid or tendered defendant’s wages.</p> <p>4. Custom.</p> <p>If there was a custom among merchant tailors and their employees requiring the latter to return garments for inspection before receiving compensation for their labor, the presumption obtains that the contract of employment was entered into with reference to it. Such a custom is reasonable and in no wise interferes with the lien of the mechanics.</p>

JError to the District Court of Arapahoe County. These proceedings were instituted in the court below by-James Glynn against John M. Henderson, state auditor, to compel the payment of the plaintiff’s salary as district judge, an office to which he claimed to have been elected, and the duties of which he was discharging. He obtained judgment, and the defendant sued-out a writ of error. The facts are fully stated in the opinion of the court.

Plaintiff in error was plaintiff below. He was for some years (and perhaps still is) a lawyer engaged in practice in Washington, D. C. The suit was brought to recover $6,000 and over for professional services. Prior to the year 1864 John S. Fillmore was an assistant paymaster of the government. In that year he. died intestate, leaving an estate principally in land in the city of Denver, and leaving as heirs, his widow, Elizabeth M., and two sons.

<p>1. Pleading — Negligence.</p> <p>Negligence is sufficiently charged in a complaint which states that the defendant railroad company was unlawfully and negligently occupying a street crossing with its engines in violation of a city ordinance, and that by reason of that fact, and without negligence on part of the plaintiff, the injury complained of resulted.</p> <p>2. Negligence pee se.</p> <p>The obstruction of a street crossing by railroad engines, in violation of an ordinance, constitutes negligence per se on part of the railroad company.</p> <p>3. Pboximate Cause — A Test.</p> <p>In determining what is the proximate cause of an injury one of the most valuable of the criteria is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened, of itself sufficient to stand as a cause of the misfortune, the other must be considered as too remote.</p> <p>4. Pboximate Cause — A Question op Pact.</p> <p>Ordinarily the question of what was the proximate cause of an injury is one for the jury and not for the court.</p>

<p>Appeal — Jurisdiction.</p> <p>The supreme court being without jurisdiction to entertain the appeal, ,'a transfer of the cause to court of appeals will not confer jurisdiction upon the latter.</p>

JError to the Superior Court of the City of Denver. Held: of the warehouse firm of Ed. Treganza & Co. Prior to and in the early days of December, 1886, the warehouse receipts of Tregánza & Co. were assigned and delivered to defendant in error to secure the money due it.

The defendants, George R. Raymond and James P. Hadley, were indicted for forging and uttering an alleged city warrant. There were twelve counts in the indictment and each count substantially sets forth, in terms and' figures, the warrant which it is alleged was forged and uttered. The warrant is in the following words and figures: “ Auditor’s Office, City of Denver. Ho. E. 1974. “Treasurer of the City of Denver.

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

<p>In the absence of limitation upon the power and discretion which the agent may exercise in regard to location, price, terms or time of payment in the purchase of real estate, the principal will be bound by the contract of the agent, and cannot recover any part of the purchase money paid upon the contract.</p>

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

On the first day of June, 1890, Henry W. Davis, the owner of some property in Waddell and Machen’s Subdivision, made a contract with one L. E. Forbes to build a house on his land.

<p>1: Affidavit in Attachment — Defective.</p> <p>An affidavit in attachment which, fails to state definitely the nature of the demand, is defective, hut not so defective as to render the proceedings thereunder absolutely void because of the provision of the , code permitting the amendment thereof.</p> <p>2. Same — Coddatebal Attack.</p> <p>The sufficiency of the affidavit cannot be attacked collaterally by a third ■ party.</p>

This was a statutory action brought against the railway company to recover the price or value of a mare killed by an engine. There is no serious conflict of testimony.

<p>Practice — Equity—Costs.</p> <p>©ne White recovered judgment in justice court against Madeley & Brophy for $297 and costs. Madeley & Brophy appealed to the .county court, and while the appeal was pending sent C. to compromise and adjust the matter, giving him $135 for that purpose. C., as he and his principals supposed, succeeded in effecting a compromise. At the time of the supposed adjustment White executed and delivered a receipt for $175, reciting that it was in full payment and settlement of the case pending on appeal.</p> <p>The receipt was not filed in the county court, hut the appeal was dismissed. The justice to whom the case was remanded issued an execution on the judgment for the entire amount, and the constable proceeded to make a levy.</p> <p>Madeley & Brophy brought this action to obtain an injunction against White, and the justice, and constable, to restrain them from further proceedings under the judgment and execution. At this time White repudiated the receipt, admitted its delivery, but claimed that he had received only a note for $40, and $50 cash. Held—</p> <p>1. That as the receipt was not in full of the amount of judgment except by agreement of the parties, and when challenged, it could not be held a discharge.</p> <p>2. The transactions between Madeley & Brophy and their agent C. could not affect White.</p> <p>3. The receipt not having been filed in county court, and the judgment satisfied, it was, in the district court, open to explanation.</p> <p>4. The appeal having been dismissed without action upon the receipt, neither the county court nor justice could recognize or act upon it.</p> <p>5. Where the evidence is conflicting, the finding of the. jury on the facts is conclusive.</p> <p>6. Where parties are forced to institute an action to obtain credit for a sum admitted to have been paid, the costs should not be taxed against them.</p>

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

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

This was an action of replevin brought by appellant, plaintiff below, against the appellee, sheriff of the county. One D. C. Bowne engaged in mercantile business in the city of Pueblo, on the 3d day of August, 1889, attempted to make an assignment for the benefit of creditors under the Statute of 1885. 1 Mills Ann.

<p>1. Municipal Authority.</p> <p>The power of the legislature to confer municipal jurisdiction, save as controlled by constitutional restrictions, is practically unlimited.</p> <p>2. Eminent Domain.</p> <p>Cities and towns are authorized to-exercise the right of eminent domain, by condemning private property for public uses. To supply water for the use of a community is one of the duties imposed on a municipality, and property taken for that purpose is taken for a public use.</p> <p>3. Same.</p> <p>A town or city may, for the purpose of supplying its inhabitants with water, exercise the right of eminent domain by condemning private property without the corporate limits.</p> <p>4. Statutory Construction.</p> <p>Statutes tending to effect an object of great public utility, ought to receive the most liberal and benign interpretation.</p> <p>5. Practice in Eminent Domain Proceedings.</p> <p>Under the eminent domain act, the question of necessity for taking the property for municipal purposes, is not for the jury to determine,— that being wholly within the province of the municipal authorities.</p> <p>6. Same.</p> <p>The issues in a condemnation proceeding may be tried either in term time or vacation. When tried to a jury in term time, it must be before the jury drawn in the ordinary way to serve at that term.</p> <p>7. Juror — Grounds oe Challenge.</p> <p>The interest of a juror as a member or citizen of a municipality which is a party to the proceeding, does not disqualify him.</p> <p>8. Practice.</p> <p>When a party’s objection to the introduction of testimony was sustained, he will not be heard to complain that it was not introduced.</p>

<p>1. Bill op Exceptions — Record.</p> <p>When a bill of exceptions conflicts with the record entries in the case, the former must be taken as correct and the latter erroneous.</p> <p>2. Judgment — Clerical Mistake.</p> <p>When a judgment appears to have been entered by a clerical mistake, it will be reversed.</p>

Plaintiee in error was plaintiff below. In 1889, Brind (defendant in error) sued out an attachment against Mattler (plaintiff in error) and made an attachment bond, as principal, executed by Adams and DeMange (codefendants in error) as sureties. The bond was in form as required by statute. Brind failed to maintain his suit and the attachment was dissolved.

<p> Appeals from the County Courts of Gunnison and Delta Counties. </p>

<p>1. Pabtneb, Authobity of.</p> <p>A member of a non-trading firm cannot, without express authority, bind his copartner by the execution of a note unless it is necessary to the transaction of the partnership business, or there be a custom in that class of business from which the law implies such authority.</p> <p>2. Same — Burden oe Pbooe.</p> <p>The burden of proving whatever is essential to give rise to the liability in such a case rests upon the party who brings the action.</p>

<p> Appeals from the County Courts of Gunnison and Delta Counties. </p>

<p>1. Pleadings and Proof.</p> <p>The allegations and proofs must correspond.</p> <p>2. Practice — Instructions.</p> <p>A failure to recognize an exception to a general rule stated in an instruction cannot he relied on as error unless the evidence tends to make a case within the exception.</p> <p>3. Sake.</p> <p>An assignment of error cannot be predicated upon an instruction, to the giving of which no objection appears to have been made.</p>

<p>1. Summons — Defective.</p> <p>Summons which fails to comply with the provision of the Code of 1889, which provides that it shall briefly state the sum of money or other relief demanded in the action, is fatally defective, and motion to quash should, be sustained.</p> <p>2. Same — Appearance.</p> <p>Defendant was not required to appear and answer the complaint in obedience to a second summons while his motion to quash the first was pending.</p>

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

<p>1. Evidence.</p> <p>In an action by tbe assignee of certain claims, evidence offered by defendants under tbe general issue, to prove that a third person furnished the money with which the claims were purchased was properly rejected.</p> <p>2. Practice — Instructions.</p> <p>Objections to instructions should be made in such time and manner as to give the trial court an opportunity to correct the same, if found erroneous. General exceptions to instructions “ in each and every part thereof ” are insufficient.</p> <p>3. Same.</p> <p>Oral instructions are within the above rule.</p>

<p>1. Practice in Criminal Cases.</p> <p>An objection that the offenses charged in the indictment are improperly joined will not be considered, upon error, when it appears that before the trial a nolle prosequi had been entered .as .to the count claimed to have been improperly joined, and that no evidence was admitted under it at the trial, or reference made to it by the court.</p> <p>2. Constitutional Law — Title oe Act.</p> <p>An act entitled “An Act to amend chapter 24 of the General Laws of Colorado, entitled Criminal Code,” complies with the provision of the constitution (art. 5, sec. 21) that a bill shall contain but one subject, which shall be clearly expressed in its title.</p> <p>3. Same.</p> <p>An act so entitled is not repugnant to the constitution on the ground that it extends the operation of the statute to persons and transactions not theretofore included.</p> <p>4. Same.</p> <p>Whenever the matter contained in a statute may fairly be considered germane to the subject expressed by its title, it is sufficient.</p> <p>5. Indictment, when sueeicient.</p> <p>An indictment stating the fact constituting the crime of embezzlement, but not designating the accused as bailee, trustee or agent, is sufficient.</p> <p>6. Same.</p> <p>It is not necessary in an indictment for embezzlement of a promissory note, to describe the note with particularity.</p> <p>7. Practice in Criminal Cases — List oe Jurors.</p> <p>The statute providing that previous to arraignment of a defendant for a felony, he shall be furnished with a copy of the indictment'and a list of the jurors and witnesses, does not require that such be furnished at any subsequent time.</p> <p>8. Practice in Criminal Cases.</p> <p>A defendant who has gone to trial without objection, cannot by motion in arrest of judgment, obtain his discharge on the ground that he was not tried on or before the second term of court after he was committed.</p>

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

<p>Estoppel.</p> <p>Where one of two innocent parties must suffer by the wrongful act of a third, it must be he who, by his conduct or silence, enables the wrongdoer to perpetrate the fraud.</p>

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

JError to the District Court of Arapahoe County. February 4,1889, The Equitable Fire and Marine Insurance Company, defendant in error, made and delivered to John Wich, plaintiff in error, in the business name of The Arkansas Valley Brewing Company, its policy of insurance for the sum of $1,530 upon certain buildings and personal property to run for the period of one year. September 5,1889, the buildings and their contents were destroyed by fire.

Cornwell, the appellee, was engaged in the watch and jewelry business in Salida, and had in his employment a man by the name of Strauss. About May 11, 1889, appellee was temporarily absent at Monarch, a small place some twenty miles distant, where he remained over night, leaving Strauss to look after the business. During the night or early in the morning, Strauss robbed the store and absconded with several watches and other property.

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

<p>1. Practice on Appeal.</p> <p>The objection to a complaint that it is ambiguous and uncertain cannot be raised for the first time on appeal.</p> <p>2. Liability oe County — Water Commissioner’s Compensation.</p> <p>Under sec. 2 of an act approved March 25, 1889, (3ess. Laws, 1889, p. 470,) each county into which a water district extends is liable for an equal amount of the compensation of the water commissioner.</p> <p>3. Practice — Cumulative Remedy.</p> <p>One whose claim against a county has been presented to and disallowed by the board of county commissioners, may, under the statute (Gen. Stats., secs. 546 and 547), either appeal to the district court or bring his action at law or in equity. His right to bring an action is not excluded by his statutory right of appeal from the decision of the board.</p>

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

oimty. On the 1st of January, 1889, Sarah Dunn (appellee) was the owner of a tract of land adjoining the town of Yuma, Washington county, a part of which had been subdivided into lots, some of which had been sold. It appears that she was addicted to drinking, becoming intoxicated at times, whenever a favorable opportunity offered.

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

<p>Mandamus.</p> <p>Mandamus lies against tlie military board to compel action upon a matter properly brought before it, but not to control discretion.</p>

Certain premises on Wazee street in the city of Denver are alleged to have been rented and used as livery and sale stables; Emily Middleton is alleged to have been the owner; Lesher and Walker, lessees, in the possession and use of the property. The building was a large structure with basement, the front for the entire length being on the line of the street.

The appellant was an incorporated company doing business in the city of- Denver, and as incident to its business was dealing in hay. In May, 1890, appellee entered into a contract with appellant by which he was to sell and ship to appellant an indefinite amount of hay during the season, being all appellee saw fit to ship at $12 per ton for a certain kind of hay known as 2d bottom hay. Park resided at Evans, Weld county.

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

Mabvin H. Moobe brought this action for the purpose of canceling a promissory note for the sum of 11,000, and a deed of trust executed to secure its payment.

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

<p>1. Pbactice in Attachment. 1</p> <p>Questions as to the sufficiency of an affidavit in attachment, not raised in the court below, will not be considered on review.</p> <p>2. Same.</p> <p>Defects in an affidavit in attachment must be taken advantage of in the court below before trial upon the traverse.</p> <p>S.Waiveb by Stipulation.</p> <p>Parties stipulating that the trial upon the traverse in attachment maybe had at a day later than the trial upon the merits, will not be heard to complain of irregularity in the order of proceeding in this respect.</p>

<p>1. Amendment aptee Appeal.</p> <p>A court has power to vacate a judgment at the term at which it was rendered, and permit the pleadings- in -the case to he amended, notwithstanding an appeal from the judgment has been perfected.</p> <p>2. Same — Disceetion.</p> <p>The allowance of amendments to pleadings rests in the sound discretion of the court.</p>

<p>1. Banks — Tbust Eunds.</p> <p>Moneys deposited or placed in bank for the payment of a draft become trust funds, applicable only to the payment of the bill, cannot be diverted from the purpose to which they were to be applied, and do not lose their character by being commingled with the general deposits.</p> <p>2. Same — Administbatob’s Intbbest in.</p> <p>Trust funds in bank may not be diverted to other uses than those designated, do not become the property of the banker, and form no part" of his estate. His administrator takes and holds them merely as a bailee.</p> <p>3. Agency.</p> <p>The relation of banker and correspondent for the purpose of collection is that of special agent to do a particular thing.</p> <p>4. Peincipal and Agent — Notice.</p> <p>The principal is chargeable with the information acquired by his agent, whether he obtained it in the course of the transaction of his principal’s business or otherwise, providing the knowledge is so acquired by him as to be presumptively within his recollection when he is acting on behalf of the principal.</p> <p>6. National Bank — Practice. ..</p> <p>A national bank organized to do business in this state is not a foreign corporation within the rule which requires proof of corporate existence under a general denial.</p>