Volume 20 — Colorado Court of Appeals Reports

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

<p>1. Trespass — Lawful Fence — Statutory Construction.</p> <p>Section 1941, Mills1 Ann. Stats., providing tliat there shall be no recovery of damages caused by stock destroying crops, grass or other vegetable products, unless the same was, at the time of the injury, inclosed by a legal fence, applies to injuries by stock lawfully running at large, and a willful trespasser knowingly herding or driving his stock upon another’s premises, cannot invoke said statute in defense of an action for such trespass.</p> <p>2. Trespass — Destroying Pasturage — Boundaries—Evidence.</p> <p>Where a sheep owner herded his sheep upon and destroyed the grass on another’s land, and the evidence showed that the landowner frequently complained of the trespass and offered to show the herder his boundaries, which offer the herder refused, the landowner is entitled to recover for the injury, although the boundaries of his land were not marked by any fence or other land marks.</p>

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

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

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

<p>1. 'Contracts — Compromise—Consideration—Bankruptcy.</p> <p>■ An agreement not to take tke benefit of the bankrupt law and thereby endanger the whole debt, is a sufficient consideration to support a compromise of a judgment for a less sum than that due." •</p> <p>2. Pleading — :Motions—Garnishment Proceedings — Evidence.</p> <p>. In á garnishment proceeding upon a judgment, on a motion to-discharge ;the garnishee on the ground that an agreement 'Of compromise and settlement of tlie judgment had been entered into between the parties to the judgment, and had been performed by the judgment debtor, evidence was admissible to prove a consideration in support of the agreemnt of compromise, although the motion did not allege a consideration, and none was expressed in the contract itself.</p> <p>3. Contracts — Judgments—Compromise.</p> <p>An agreement to accept less than the full amount of a judgment in satisfaction thereof, based upon a good and valid consideration, is governed by the law applicable to contracts generally.</p> <p>4. Contracts — Judgments—Compromise—Payments—Estoppel.</p> <p>Where an agreement was entered into between the parties to a judgment, whereby in consideration that the debtor should not take the benefit of the bankrupt law, the creditor agreed to accept a less sum than the amount of the judgment in full satisfaction thereof, part to be paid cash and the balance in monthly installments on a certain day of the month, and the cash payment was made at the time, and the monthly installments were made two at a time on or near the day the first of the two was due, and the creditor accepted such payments and applied them on the agreement, without objection, although some of them were paid a day or two after due, after all but the final payment was made, which was tendered one day after it was due, the creditor was estopped to say that the debtor had not performed his part of the agreement because some of the payments and the final tender were made a trifle later than the agreement stipulated.</p>

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

<p>1. Negligence — Warehousemen—Liability.</p> <p>In the absence of a special contract limiting their liability, warehousemen are ordinary bailees for hire, bound to ordinary care and diligence, and are liable for losses caused by a failure to exercise such ordinary care to protect property stored in their warehouses.</p> <p>2. Negligence — Contracts.</p> <p>In all cases contracts against liability for negligence should be construed strictly with every intendment against the party seeking the protection of such contract.</p> <p>3. Warehousemen — Negligence—Contracts.</p> <p>A receipt, given by a warehouseman for apples stored for preservation, across which was indorsed the words, “At owner’s risk,” did not operate to relieve the warehouseman from liability for loss by freezing, caused by his failure to exercise ordinary care for the preservation of the apples.</p> <p>4. Warehousemen — Contributory Negligence.</p> <p>In actions against warehousemen for damage to property stored, alleged to have been caused by the negligence of such warehousemen, the doctrine of contributory negligence of the owner, is applicable.</p> <p>5. Same.</p> <p>Where an owner stored apples in a warehouse kept for the storage of such property for hire, and which appeared to be suitable for the purpose of preserving the apples, and which had facilities, if availed of, to protect the apples from freezing, and, by failure of the manager of the warehouse to exercise ordinary care to protect the apples against unusually cold weather they were frozen, the owner was not guilty of contributory negligence in storing the apples.</p> <p>6. Measure of Damage — Instructions—Harmless Error — Appellate Practice.</p> <p>Error in an instruction upon the measure of damage was not prejudicial to appellant where it appears that appellee, if entitled to recover at all, was entitled to damage in a larger sum than that recovered.</p>

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

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

<p>1. Evidence — Secondary—Proof of Loss.</p> <p>In an action by the assignee of a claim, where the assignment was in writing, testimony of plaintiff’s counsel that plaintiff turned the assignment over to him and that he left it; with the papers in the case, in the office of the justice of the peace, and that he afterwards looked amongst those papers and it was not there, and that he also made search among the papers in his office but could not find it, was sufficient proof of loss to admit secondary evidence of what the assignment contained.</p> <p>2. Evidence — Parties.</p> <p>Where defendant had been managing a mine on behalf of himself and co-lessees, statements made by him to various employees that, after a certain date, he would be sole lessee, and in conversations with plaintiff about an indebtedness for work done after said date, he spoke of it as his individual indebtedness and promised to pay it as soon as he could sell his lease, was sufficient to support a finding that defendant was sole owner of the lease and solely liable for the indebtedness.</p>

<p> Appeal from the District Court of the City and County of Denver. </p>

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

<p>1. Practice in Civil Actions — Summons—Appearance—Appeal from Justice of the Peace to County Court.</p> <p>An appeal from a judgment of a justice of the peace to the county court waives all irregularities and defects in the form or service of summons, or want of process.</p> <p>2. Same — Suit in Wrong Precinct — Waiver.</p> <p>By appearing specially in a suit before a justice of the peace and objecting to the irregularity of the summons and service thereof, without objecting that the suit was brought in a different precinct than that in which defendant resides, defendant waived the latter objection, and could not raise it on an appeal to the county court.</p>

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

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

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

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

<p>1. Appellate Practice — ^Findings—Evidence—Limitation. •</p> <p>Where the question of whether or not certain claims were barred by the statute of limitations depended upon questions of fact as to whether or not a new contract was created by payments on the notes, or whether an alleged contract of extension was made, and these facts were determined upon conflicting evidence, the appellate court is bound by such determination, and the rule is the same whether the trial was to the court or to a jury.</p> <p>2. Appellate Practice — Evidence—Credibility of Witnesses.</p> <p>Where trial was to the court, the questions as to what effect a witness’s relationship to one of the parties and interest in the subject-matter had upon the credibility of such witness, and to what extent such credibility was affected by contradictions, were for the court to determine, and it was within its province to entirely disregard the testimony of such witness.</p> <p>3. Limitation — Payments—Extension—Burden of Proof.</p> <p>Where a contract of extension or payment is relied upon to avoid the bar of the statute of limitations to a claim, the burden of proof is upon the claimant to establish such extension or payment by a preponderance of testimony.</p>

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

<p>1. Contracts — Continuing Service After Expiration of Term.</p> <p>Where a professor was employed by an. express contract to teach in a college for the term of one year, and continued in the same service, without objection, after the expiration of the term, there was an implied contract of employment for the term of one year at the same salary for each year that he so continued.</p> <p>2. State Board of Agriculture — Employment of Teachers — Contracts.</p> <p>The state board of agriculture has power to employ professors to teach in the state agricultural college, and may make a valid contract for such employment for a definite time of reasonable length.</p> <p>3. Same — Discharge—Damages.</p> <p>Where the state board of agriculture employed a professor to teach in the state agricultural college for the term of one year, and discharged him before the end of the term, without good cause, said professor was entitled to recover his salary for the balance of the term, as damages for violation of the contract.</p> <p>4. Same.</p> <p>The fact that the statute gives the state board of agriculture power to remove professors in the state agricultural college, does not relieve them from liability for damage for wrongfully removing such professor before the expiration of his term of employment.</p>

<p>1. Contracts — Partnership.</p> <p>• M. and K. agreed to locate certain mining claims, which they afterwards did with other associates. M. and other associates sold the claims, and M. accepted, as consideration for his and K.’s interests, a certificate for a certain number of shares in a mining company, issued in M.’s name. M. agreed to return this certificate and have two issued, one to each, for an equal number of shares. This was not done, and M. afterwards sold the certificate. During the time of the location and sale of the claims, M. was engaged in various mining and other business enterprises, and, frequently, during this time, told- K. he should have a half-interest in all of his business undertakings. K. contributed some money towards the mining and other schemes, but there was no promise on his part to pay any certain sum or part of the expense. Held, that if the evidence established any contractual relation between M. and K., it was that of a general partnership in the various business interests, and K. was not the owner in severaity of any specific part of the partnership property, and could not maintain an action against the purchaser for half of the mining stock sold by M.</p> <p>2. Partnership — Accounting.</p> <p>One partner cannot maintain an action against another for the recovery of a specific part of the partnership assets, but is entitled to an interest in all the partnership assets to be determined by an accounting.</p> <p>3. Partnership — Sales.</p> <p>One partner has a right to sell assets of the copartnership, and another partner cannot question such sale, or recover the property sold.</p> <p>4. Contracts — Consideration.</p> <p>A promise by one, to whom a certificate of capital stock in a mining company was issued, to return such' certificate and have two certificates issued in lieu thereof, one to himself and one to another party, without the payment of or promise to pay any consideration therefor by such other party, will not support an action against a subsequent purchaser of the certificate and the mining company, to require a transfer of half the shares represented by the certificate to said other party.</p>

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

<p>1. Principal and Agent — Commission—Contracts—Sales.</p> <p>Where an owner contracted with an agent to pay him ten per cent, of the purchase price if the agent should produce or introduce a customer to whom certain property should he sold on terms satisfactory to the owner, the commission to be paid at the date of the payment of the purchase price, or in installments according to payment by the purchaser, and a purchaser was introduced to whom a sale was made, and, as part of the purchase price, the purchaser paid off certain liens on the property held by other parties, the agent’s commission was not dependent on the payment of the entire purchase price, nor limited to payments made to the seller, or for his interest, but he was entitled to recover from the seller ten per cent, of the amount paid other parties in settlement of liens on the property as soon as such payments were made, although the seller had not received any part of the purchase price.</p> <p>2. Receivers — Certificates—Liens.</p> <p>Obligations secured by receiver’s certificates are liens upon the property in the hands of the receiver.</p>

<p>1. Husband, and Wife — Liability for Family Expenses — Judgment.</p> <p>Under section 3021a, 3 Mills’ Ann. Stats. (Revised Supplement)," a personal judgment may be rendered against the wife for a debt contracted by the husband for family expenses.</p> <p>2. Same.</p> <p>Family expenses for which the husband and wife are jointly and severally liable, include wearing apparel purchased and worn by the husband, and it is not necessary to show that such wearing apparel was suitable to the degree ánd condition in life „of the family, in order to make the wife liable therefor.</p> <p>3. Same — Evidence.</p> <p>In an action against a wife for wearing apparel purchased and worn by her husband, it is not sufficient to show that they are husband and wife, but it must also be shown that they are living together, so as to constitute a family.</p>

Appeals from the District Court of Arapahoe County. By an act of the legislature approved March 11, 1899, amendatory of the charter of the city of Denver, the city council was empowered ‘ ‘ to require railroad companies to. construct, at their own expense,, such bridges and their approaches, tunnels or other conveniences at public crossings, and such viaducts and their approaches over their tracks, where the same cross or extend along the public highways or streets, and to…

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

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

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

<p>1. Attorney at Law — Authority to Employ Assistant.</p> <p>Counsel employed to defend an action may employ an assistant at his own expense, but he has no implied authority to employ associate counsel at’the expense of his client.</p> <p>2. Same — Contracts—Ratification.</p> <p>The fact that a client had knowledge that his counsel was' being assisted in a cause by another attorney is not enough to charge the client with a ratification of the employment by his counsel of such assistant nor' to estop the client to deny the employment of such assistant on his account.</p> <p>3. Same — Attorney’s Liens.</p> <p>An attorney employed by counsel in a case at such counsel’s own expense is not entitled to a lien upon a judgment obtained in the cause for fees in the case.</p> <p>4. New Trial — Newly-Discovered Evidence — Cumulative.</p> <p>A new trial will not be granted on the ground of newly-discovered evidence where such evidence is cumulative and would not have changed the result of the trial if it had been adduced.</p>

<p> Appeal from the District Court of the City and County of Denver. </p>

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

<p>1. Change of Venue — Discretion—Appellate Practice.</p> <p>The granting-or refusing a motion for change of venue on the ground of prejudice of the inhabitants is within the sound discretion of the trial court and will not be reviewed unless it clearly appears that there was an abuse of such discretion.</p> <p>2. Change of Venue — Notice.</p> <p>It -would be error to grant a change of venue of an action without reasonable notiee of the application for the change having been given the adverse party or his attorney.</p> <p>3. Juries — Verdicts—Instructions.</p> <p>Where a jury of six returned a unanimous verdict, an erroneous instruction which told the jury that five of their number might return a verdict, was not prejudicial.</p>

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

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

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

<p>Evidence — Impeaching Witness — Instructions.</p> <p>In an effort to impeach a witness on the ground that his general reputation for truth and veracity in the community where he resided was bad, where two witnesses testified to his bad reputation, it was error to instruct the jury to disregard the testimony of the impeaching witnesses as the testimony of two witnesses was insufficient to impeach.</p>

<p>Juries — Verdicts—Constitutional Law.</p> <p>The act authorizing three-fourths of the members of a jury to return a verdict (Session Laws 1899, page 244) is unconstitutional, and a verdict returned by five of the six members of a jury was a nullity.</p>

<p>Juries — Verdicts—Constitutional Law.</p> <p>The act authorizing three-fourths of the members of a jury to return a verdict (Session Laws 1899, page 244) is unconstitutional, and a verdict returned by five of the six members of a jury was a nullity.</p>

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

<p>Contracts — Assignment—Assumption of Debts.</p> <p>Plaintiff was employed by a milling company at work in its concentrating mill; defendant loaned money to the company; to secure the money loaned and upon defendant’s agreement to pay the operating expenses for the past month the company assigned to him all the concentrates from the mill until its indebtedness to him was paid. All the concentrates for the next month were turned over to him but were not sufficient to pay his claim. Held, that defendant was not liable for the operating expenses of the mill other than for. the month he agreed to pay, and was not liable to plaintiff and other employees for their wages during the time he received the concentrates.</p>

<p>1. Certiorari — Jurisdiction.</p> <p>The province of certiorari is tp inquire only into the question of jurisdiction..</p> <p>2. Cities and Towns — Intoxicating 'Liquors — Canceling License— Certiorari — Jurisdiction.</p> <p>The district court cannot hy certiorari review the action of the board of trustees of a town in canceling a license to sell liquors, unless it he shown, that the hoard acted without jurisdiction.</p>

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

<p>1. Continuance — Discretion—Appellate Practice.</p> <p>Applications for continuance are addressed to tlie discretion of trial' courts, and their rulings thereon should not be disturbed by the appellate court except in cases of clear abuse of such discretion.</p> <p>2. Same.</p> <p>It was not an abuse of discretion to deny a motion for continuance on the ground of illness of counsel, made the day before the cause was set for trial, where it.does not appear that the motion was promptly made after applicant learned that his attorney would not be- able to> try the cause and where the amount involved was small and the issues simple and where new counsel was secured who tried the cause.</p> <p>3.-' Contracts — Weights—Evidence.</p> <p>In an action for the price of hay where the contract of sale was per ton, “baler’s weights” at the stack yard, and the uncontradicted evidence showed that the hay delivered amounted, according to “baler’s weights,” to the quantity stated in the complaint, it was not error to exclude testimony as to the weight of the hay on the purchaser’s scales after shipment.</p>

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

<p>1. Evidence — Testimony at Former Trial — Depositions.</p> <p>The testimony of a same cause and preserved hy bill of exceptions is admissible in-evidence where the witness has left the state and is beyond the jurisdiction of the court .without any showing of an effort to take the depositions of the witness.</p> <p>2.</p> <p>• 'Tn an action upon a is suicide of insured, the burden of proof is upon the defendant to establish that fact.</p> <p>3. Suicide — Evidence.</p> <p>The mere fact of finding the dead body of a person in a room together with evidence that he had been poisoned by cyanide of potassium is not enough to establish the fact of suicide, where there was evidence that cyanide 'of potassium was used as a medicine and had previously been frequently prescribed for deceased by his physicians.</p> <p>4.</p> <p>The presumptions are against may he explained on the theory of suicide is also explainable on another theory which excludes the supposition of suicide, in the absence of evidence to the contrary, the law will adopt the latter hypothesis. •</p> <p>5. Insurance — Suicide—Evidence—Res Gestas.</p> <p>In an action upon a policy of thereof, neither the declarations nor conduct of the insured after the assignment of the policy, are admissible in evidence against the assignee for the purpose of proving death by suicide, unless the déclarations or conduct are part of the res gestae.</p> <p>6. Same.</p> <p>In an action upon a policy of life insurance by the assignee thereof, if evidence of declarations of the deceased insured separated by a distinct interval of time from the- act by which life was terminated may be properly allowed to establish suicide of the insured, the declarations should be such as unmistakably indicate a suicidal intent, and evidence which gives rise, to nothing more than conjecture should never be allowed to go to the jury.</p>

<p>Appellate Practice — Record—Guardian’s Report.</p> <p>On the ■ hearing of exceptions to a guardian’s report the report and exceptions thereto constitute' the pleadings in the case and a judgment approving the report will not be reviewed on appeal unless the report and exceptions thereto are incorporated in the record; and the absence of an authenticated record cannot be supplied by-statements in the brief of appellee and the adoption of such statements by appellant.</p>

<p>1. Practice — Pleading—Motion for Nonsuit.</p> <p>A motion by defendant for nonsuit is in the nature of a demurrer to the evidence, and should not be made on the ground of insufficiency of the complaint; such objection should be made by demurrer, or if after judgment for plaintiff, by motion in arrest.</p> <p>2. Pleading — Complaint—Goods Sold and Delivered.</p> <p>A complaint which alleges an indebtedness in a sum certain for goods sold and delivered is sufficient to state a cause of action. It is not necessary to aver, in terms, that the debt is due, or has not been paid.</p> <p>3. Contracts — Memoranda—Evidence.</p> <p>In an action for the price of certain machinery, where defendant claimed that the plaintiff sold the machinery as the agent of a certain machinery company, testimony by plaintiff that he was the owner and sold it as his own, and that a memorandum of the terms of sale was made upon a blank used by the machinery company because he had no other paper upon which to write, was admissible in explanation of the memorandum. The memorandum being signed only by defendant and not having been signed either by plaintiff or the machinery company, was not a contract in writing the terms of which could not be varied by parol testimony.</p> <p>4. Sales — Contracts—Payments.</p> <p>From a sale and delivery of goods where the parties are silent as to the time or terms of payment, a promise of immediate payment is implied.</p> <p>5. Same.</p> <p>Where by the terms of a contract of sale of goods the purchaser is given time within which to pay, on condition that he secure the debt, by his refusal to perform the condition the consideration for the grant of time fails and the purchase price is due and payable at once.</p> <p>6. Pleading — Departure—Appellate Practice.</p> <p>If a replication set up a cause of action different from and inconsistent with that stated in the complaint, objection to the departure should be raised before trial. It is too late to raise the question for the first time on appeal.</p> <p>7. Pleading — Departure—Payments.</p> <p>In an action for the price of machinery sold and delivered, where the complaint alleged generally the sale and delivery at a certain price, and the defendant pleaded that the purchase price was not due, a replication which alleged an agreement to give the defendant time for making payment on condition that he secure the debt, and his refusal to secure the debt, was not a departure from the complaint.</p>

<p>Libel — Limitation—Pleading—Demurrer.</p> <p>In an action for libel where the complaint on its face showed that the alleged libelous publication was published more than one year prior to the commencement of the action, a demurrer to the complaint on that ground -was properly sustained.</p>

<p>Libel — Limitation—Pleading—Demurrer.</p> <p>In an action for libel where the complaint on its face showed that the alleged libelous publication was published more than one year prior to the commencement of the action, a demurrer to the complaint on that ground -was properly sustained.</p>

<p>1. Parties — Official Bonds — Fraternal Societies — Incorporation— Trusts and Trustees.</p> <p>Where the official bond of an officer in a fraternal society ran to the trustees of the society under the name the society bore prior to incorporation, such trustees could maintain an action in their own names on the bond for a default therein without making the society a party thereto, although at the time of the execution of the bond and the bringing of the action the society was • incorporated under a slightly different name from that it bore prior to incorporation.</p> <p>2. Pleading — Title of Cause — Descriptio Personarum.</p> <p>Tn an action by the trustees of a fraternal society, suing for the benefit of the society, so much of the title of the complaint as follows the names of the trustees may be treated as descriptio personarum.</p> <p>3. Pleading — Surplusage—Fraternal Societies — Incorporation.</p> <p>In an action by the trustees of a fraternal society upon an official bond which expressly made the trustees obligees therein, an allegation in the complaint that the society was unincorporated may be treated as surplusage, and the fact that the society was at the time incorporated was immaterial.</p>

<p> Appeal from the District Court of Arapahoe Co'uiity. </p>

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

<p>1. Appellate Practice — Bill of Exceptions — Preserved by Affidavits — Notice.</p> <p>A bill of exceptions attempted to be proven and preserved by •affidavits under section 385, Mills’ Ann. Code, tbe trial judge having refused to attest the same, will not be 'considered by the appellate court where the record fails to show that the opposite party had notice that the bill would be sought to be preserved by affidavits.</p> <p>2. Appellate Practice — Bill of Exceptions — Sufficiency of Evidence.</p> <p>The sufficiency of the evidence to sustain a judgment will not be inquired into by the appellate court unless it appears that all the evidence offered and introduced at the trial is preserved in the record. It will be presumed that the judgment was warranted by the evidence.</p>

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

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

<p>Negligence — :Safe Appliances — Assumption of Risk.</p> <p>An experienced boiler maker of mature years who voluntarily accepted work riveting a large iron tank where he had to make use of a scaffold furnished by his employer, which scaffold was constructed of material ordinarily used in such scaffolds and was of simple construction such as any ordinary person was capable of judging of its sufficiency for the purpose for which it was used, and where he had knowledge or means of knowledge equal to that of his employer of the insufficiency of the scaffold for the use to which it was subjected, and so continued at work without making any complaint of the insecurity of the scaffold or receiving from his employer any promise to remove such insecurity, assumed the risk of the insecurity of the scaffold and cannot recover from his employer damages caused by such scaffold falling and injuring him while at work thereon.</p>

<p>Jurisdiction — Appellate Practice — Taxes and Taxation — Unjust Assessment.</p> <p>The court of appeals has no jurisdiction either on appeal or ■ writ of error to review a judgment of the district court in a special proceeding appealed to the district court from the action of the hoard of county commissioners upon a petition from a taxpayer for relief from an unjust assessment for taxes under the statute (Session Laws 1889, pages 24, 25; 2 Mills’ Ann. Stats., sections 3839-3842.)</p>

<p>Chattel Mortgages — Merchandise—Possession and Use.</p> <p>A chattel mortgage on a stock of merchandise which provides that until default the mortgagor shall retain possession of the stock of goods and use and enjoy the same, is void as to creditors of the mortgagor, but where a merchant executed a chattel mortgage- on specific articles, each of which was separately described in the mortgage, some of which articles were never part of the stock of merchandise and those that were part of the stock in trade were segregated from the stock, and each article was capable of being put to a practical use while in the possession of the mortgagor, a provision in the mortgage authorizing the mortgagor to retain possession of the chattels and to use and enjoy the same will not be construed as authorizing a sale of the chattels mortgaged, and will not invalidate the chattel mortgage.</p>

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

<p>Practice — Nonsuit—Reversal—New Trial — Directing Verdict— Law of Case.</p> <p>Where a case was tried to a jury and at the close of plaintiff’s testimony the court entered a judgment of nonsuit, which judgment on review was reversed by the appellate court on the ground that the evidence was sufficient to go to the jury, and on a second trial the plaintiff’s testimony was substantially the same as on the former, it was error for the court to direct a verdict for defendant at the conclusion of the evidence, although plaintiff’s evidence was contradicted by the evidence for the defendant, as the appellate court had already held plaintiff’s evidence sufficient to go to the jury, and the finding of the facts under conflicting evidence and passing upon the credibility of the witnesses and weight of the testimony was for the jury and not for the court.</p>

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

<p>1. Corporations — insurance—Agent’s Bond — Denial of Capacity to Sue.</p> <p>Where an agent executed a fidelity bond to an insurance company under the name in which it sues, and collected and received money on its account which he obligated himself in the bond to pay over, neither he nor his sureties can escape liability on the bond for a failure to pay over money collected, by denying the capacity of the company to sue.</p> <p>2. Insurance Companies — Capacity to Sue — Evidence—Appellate Practice — Abstract of Record.</p> <p>In an action by a foreign insurance company where plaintiff introduced in evidence a document to show its authority to do business in this state, and the abstract of record prepared by defendants on appeal fails to contain the document, it will be presumed that the document introduced in evidence was a certificate of the superintendent of insurance that the requirements of the law of the state had been complied with.</p> <p>3. Principal and Agent — Agent’s Fidelity Bond — Action Upon — • Evidence — Admissions.</p> <p>In an action by an insurance company upon an agent’s fidelity bond to recover money collected by the agent for the company which he failed to turn over to the company, monthly, statements made by the agent to the company in the course of his business as agent for the company showing the amount of money received for the company, and an admission of indebtedness by the agent to a representative of the company made in an attempt by the company to effect a settlement with the agent were admissible in evidence against the sureties as part of the res gestae.</p> <p>4. Principal and Agent — Fidelity Bond — Liability of Sureties.</p> <p>If an agent who gave to an insurance company a fidelity bond faithfully paid over to the company all the money due to it on account of business done by him after the date of the bond, the conditions of the bond were fully performed, and it was not in' the power of the company or agent, or both acting together, to make any application of the money that would create a liability against the sureties on the bond.</p> <p>5. Insurance — Action on Agent’s Bond — Evidence.</p> <p>In an action by an insurance company upon an agent’s fidelity bond, evidence offered by defendants to show that money remitted by the agent to the company after the execution of the bond, embracing money received for premiums on policies issued by plaintiff and other companies, was applied by plaintiff on an indebtedness of the agent made prior to the date of the bond, was properly excluded where there was no showing or offer to show how .much of the money so applied was received for premiums on policies issued by plaintiff and how much on policies issued by other companies.</p>

<p>1. Pleading — Injunction—Threats.</p> <p>In an action to enjoin defendant from committing acts injurious to plaintiff’s land where the complaint alleges the frequent commission of injurious acts, and the continuance of such acts at the time of filing the complaint, a threat to continue the acts may he implied and in the absence of a demurrer or other objection on that ground in the trial court, the complaint will be held sufficient to call into exercise the equitable jurisdiction of the court although it fails to allege that defendant threatens to continue the injurious acts.</p> <p>2. Injunction — Injuries to Land — Adequate Remedy at Law— Multiplicity of'Suits.</p> <p>An action for damage on each recurrence of the injurious act being the only remedy at law for frequently repeated injuries to land, equity has jurisdiction to enjoin the commission of such acts on the grounds of inadequacy of remedy at law and to prevent a multiplicity of suits.</p> <p>3. Pleading — Injunction—Damages.</p> <p>A complaint which alleges that plaintiff was injured by frequent acts of defendant injurious to plaintiff’s land but which does not allege that plaintiff sustained damage in any specific sum, and prays for an injunction, is a bill in equity for an injunction only although it prays for damages.</p> <p>4. Public Land — Watercourse—Change of Bed of Stream.</p> <p>Where a river on public land changed its course, the old bed became a part of the surrounding land and passed by patent to a subsequent pre-emption locator of land including the abandoned river bed.</p> <p>5. Public Lands — Water Rights — User.</p> <p>Mere user of public lands, however long continued, gives no title as against the United Státes, and where a party had used' an old abandoned river bed on public land to convey water, but had not acquired an easement pursuant to law, after the issuance of a patent to the land including the abandoned river bed to another party, the party using the river bed could burden the land with a right of way for water only by consent of the patentee or by proper legal proceedings.</p> <p>6. Public Lands — Water Rights — Necessity.</p> <p>The right conferred by U. S. Revised Stats., sections 2339-2340, upon appropriators of water, to occupy outside public land for the purpose of conveying water to lands of the appropriator, and to which all subsequent patents to the land across which such right of way is acquired are subject, springs from and is limited by the necessities of the appropriator.</p> <p>7. Same.</p> <p>The use of an abandoned river bed on the public land for the purpose of turning water into it from a ditch to relieve the ditch of an excessive, flow therein, which excessive flow might have been prevented by constructing and maintaining a suitable head gate at the proper place, or for the purpose of watering the appropriator’s live stock when his own land furnished ample facilities for watering such stock, are not such necessary uses as would give the user a right of way through the abandoned river bed for conveying water as against a subsequent patentee of the land including the river bed.</p>

<p>1. Bills and Notes — Limitation—New Promise.</p> <p>A statement by one of the joint makers of a note to the payee in reference to the note as follows: “We owe it and .1 will have to pay it,” is'such an acknowledgment of the debt as implies-a promise to pay it, and will avoid the bar of the statute'of limitations.</p> <p>2. Same — Evidence—Compromise.</p> <p>Where the payee and payor of a note had a conversation about the note in which the pendency of a suit on the note, the amount due thereon and other matters were discussed, and in the conversation the payor acknowledged that he owed the note, and the next day they had another interview in which the payor made several offers of compromise which were not accepted by the payee, the acknowledgment of the indebtedness by the payor in the first conversation was not connected with the offer of compromise in the second and was admissible in evidence in the suit on the note for the purpose of avoiding the statute o£ ■limitations.</p> <p>3. Parties — Appeals from Justice to County Court.</p> <p>Where a judgment is rendered against several parties by a justice of the peace and some of the parties appeal to the county court, unless' the parties not joining appear in county | court or are served with summons to appear, judgment cannot j be rendered against them at the first term of court, but the cause must be continued to the next term.</p> <p>4. Parties — Pleading—Practice.</p> <p>The rule that objection to a defect of parties must be raised by demurrer or answer, is applicable in cases originating in a justice court and tried in the county court on appeal without written pleadings, and where a judgment was rendered against three parties by a justice of the peace, two of whom appealed to the county court, where the case was tried without the other party having been joined, but objection on that ground was raised for the first time on motion for a new trial, the objection came too late and was waived.</p>

<p>1. Continuance — Appellate Practice.</p> <p>The granting or refusing of an application for a continuance is largely within the discretion of the trial court. Its ruling thereon is subject to review by the appellate court, but before such ruling will be reversed it must affirmatively appear that there has been an abuse of such discretion.</p> <p>2. Same — Absence and Sickness of Witness.</p> <p>The refusal of an application for continuance on the ground that a material witness was absent from the county on the advice of his physician on account of sickness, was not an abuse of discretion where "the affidavits failed to show that counsel for applicant did not know of the illness of the witness and his departure from the county in time to have taken his deposition by proper diligence, and where it does not appear from the affidavits that the witness could not have attended court without risk to his health.</p>

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

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

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

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

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

<p>1. Sales — Fraud—Burden of Proof.</p> <p>Creditors cannot successfully assault a sale of a stock of goods by their debtor on the ground of fraud without connecting the purchaser therewith, and the burden of proof is upon them to show the connection of the purchaser with such fraud. ,</p> <p>2. Sales — Fraud—Evidence—Innocent Purchaser.</p> <p>In an action by a creditor to set aside an alleged fraudulent sale of a stock of goods by a debtor, the evidence examined and held insufficient to show any connection of the purchaser with the alleged fraud, or to show any knowledge either actual or constructive on the part of the purchaser of the fraudulent intent of the debtor.</p> <p>3. Sales — Fraud—Instructions—Harmless Error.</p> <p>In an action by a creditor to set aside an alleged fraudulent sale of a stock of goods, where the evidence fails to connect the purchaser with the alleged fraud of the seller, and the court would have been justified in withdrawing the question of fraud from the consideration of the jury, error, if any, committed in the instructions upon the question of fraud was not prejudicial to plaintiff and will not be considered on review of a judgment in defendant’s favor.</p> <p>4. Sales — Fraud—Delivery—Possession.</p> <p>Where a bill of sale to a stock of goods situated in Denver, Colorado, was executed in Chicago, Illinois, on the 8th day of the month and was delivered to the purchaser’s agent on the 9th with the understanding that the sale was not to become operative or take effect until the purchaser’s agent had time to reach Denver and take possession of the property, which he did on the 11th day of the month, and held possession of the property for the purchaser until it was taken by the sheriff under a writ of attachment, there was an immediate delivery and actual and continued possession of the property sufficient to sustain the sale as against attaching creditors.</p> <p>5. Sales — Partnership—Individual and Firm Debts.</p> <p>Where a loan was made to a partnership and the money went into the partnership business and was used for partnership purposes, although the debt was evidenced by an individual note of one of the members of the firm and was charged on the books of the firm as an individual debt of the member giving the note, and the partnership acknowledged the debt as a firm debt and paid interest thereon and subsequently executed a firm note for the debt, the debt was a partnership debt, and was a sufficient consideration to sustain a sale of partnership property in payment thereof as against other partnership creditors.</p>

<p>1. Sale's — Delivery—Evidence.</p> <p>•In an action for goods sold and delivered, where it appeared from the evidence that the goods were delivered to the defendant and were subsequently returned to the plaintiff without any explanation of the reason or purpose of their return, and remained in the possession of plaintiff subject to defendant’s order, there was sufficient proof of delivery to sustain the action.</p> <p>2. Appellate Practice.</p> <p>A question will not be reviewed by the appellate court unless it has first been presented to and passed upon by the trial court.</p>

<p>1: Bills and Notes — Pleading—Joint Makers.</p> <p>Where a promissory note contains the words “I promise to pay” and is signed by two parties, they are joint makers, and in an action on the note against one of said joint makers where the allegations of the complaint were otherwise sufficient to charge defendant as a maker, the fact that the complaint described him as a guarantor for the other joint maker is immaterial, and the complaint will be held sufficient to sustain a judgment against him as maker.</p> <p>2. Bills and Notes — Pleading—Consideration.</p> <p>In an action upon a promissory note where the note, which contained the words “value received,” was incorporated into the complaint, it was unnecessary to specially allege a consideration for the note.</p> <p>3.. Practice — Pleading—Demurrer—Time to Answer.</p> <p>Where at the time a demurrer to a complaint was overruled the defendant announced that he would stand by his demurrer, the fact that the court did not fix .a time for answer was not error.</p> <p>4. Bills and Notes — Pleading—Ownership.</p> <p>In an action upon a promissory note by the payee, the plaintiff is presumptively the owner, and it is not necessary to allege that he is the owner.</p>

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

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

<p>1. Appellate Practice — Assignments of Errors — Evidence.</p> <p>Where parol testimony of a judgment was admitted without objection and a subsequent motion to strike it out was overruled, the ruling of the court denying the motion will not' be considered on appeal unless assigned for error.</p> <p>2. Evidence — Objection—False Assumption of Fact.</p> <p>An objection to the admission of testimony is properly overruled where the objection is based on a false assumption of fact.</p> <p>3. Appellate Practice — Abstract of Record — Evidence.</p> <p>Assignments of error based on the admission and exclusion of evidence will not be considered where the abstract of record fails to show that the evidence admitted was objected to, and fails to show what the evidence excluded was.</p> <p>4. Appellate Practice — Abstract of Record — Instructions.</p> <p>Assignments of error based on instructions given or refused will not be considered if the abstract of record fails to show that any instruction asked was refused, or that any objection was made to any instruction given.</p> <p>5. Pleading — Defective Complaint Cured by Answer.</p> <p>A complaint, defective in failing to state a contract with sufficient clearness, when not demurred to, will be cured by an answer setting forth matters in justification of a breach of the contract by defendant.</p>

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

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

<p>Appellate Practice — Excessive Verdict — Remittitur.</p> <p>Where plaintiff sued on two causes of action and recovered a verdict on both in an amount in excess of the claim in the second cause but less than the aggregate claim of both, and there was no evidence to support the verdict on the second cause of action, a remittitur entered by plaintiff for the amount sued for in the second cause of action cured the error of the jury allowing any sum on the second cause, and a judgment entered on the first cause of action for the remainder of the amount of the verdict will be sustained.</p>

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

<p> Error to the District Court of Pueblo County on Motion to Require Cost Bond, and Cross Motion to Sue In Forma Pauperis. </p>

<p> Appeal from the District Court of 8an Juan County. </p>

<p>1. Judgments — Collateral Attack — Fraud.</p> <p>Judgments may be attacked for fraud by answer or cross-complaint.</p> <p>2- Quieting Title — Judgments—Execution Sale — Fraud.</p> <p>In an action to quiet title plaintiff rested her title on a sheriff’s deed under an execution sale, and defendant, by cross-complaint, attacked the judgment under which plaintiff claimed for fraud. The evidence showed that a corporation in which plaintiff was a stockholder, but not a director, was in debt to her and at a directors’ meeting at which plaintiff was not present and at which only a minority of the directors were present, and without any previous knowledge on plaintiff’s part, it was voted to give plaintiff a demand note for the amount of her indebtedness, which was done. This note was the foundation of the judgment under which plaintiff claimed. Held, that the irregularity or want of authority of the officers of the corporation, in executing the note to plaintiff, was not such fraud as would warrant the cancelling of the sheriff’s deed to plaintiff.</p> <p>3. Quieting Title — Possession—Cross-Complaint-—Waiver.</p> <p>In an action to quiet title defendant, by filing a cross-complaint in which he sought to have his own title quieted, and hy failing to object to the insufficiency of plaintiff’s proof at the close of plaintiff’s testimony, waived objection to plaintiff’s failure to prove possession.</p> <p>4. Quieting Title — Disclaimer—Costs.</p> <p>In an action to quiet title where defendant disclaimed as to part of the premises and claimed title and right of possession as to the remainder, in case of judgment for plaintiff, defendant is not entitled to have part of the cost assessed against plaintiff.</p>

<p>Cities and Towns — City Engineer — Records of Office.</p> <p>Under an ordinance of a city requiring the city engineer to inspect and pass upon all public works ordered by the city, to make out plans, specifications and estimates thereof, to do the surveying and engineering ordered by the city and to perform such other duties not inconsistent with his employment as the city council might require, and which required him to preserve and deliver to his successor in office all plans, maps, notes, surveys, books, papers and documents pertaining to his office, such city engineer is not required to turn over to his successor books containing field notes made by him in surveying lots of individual owners upon their application, under their employment and at their expense, but such books are private property.</p>

<p>1. Tax Sales — Notice—Affidavit of Publication — Evidence.</p> <p>The affidavit of publication, of notice of tax sales required to be made by the publisher of such notice and transmitted to the county treasurer and by him deposited with the county clerk, is the exclusive evidence of the fact and manner of the publication except in case of loss or destruction of such affidavit.</p> <p>2. Tax Sales — Notice—Publication—Affidavit of Publication.</p> <p>An affidavit of publication of notice of a tax sale which states that the list of lands for sale was published for four successive weeks in a weekly newspaper, but fails to show that the notice of the time and place of sale was published, is insufficient to support a tax sale.</p> <p>3. Same.</p> <p>An affidavit of publication of notice of a tax sale which states that the notice was published in a daily paper on the 6th day of September, and that the last publication was made prior to the first day of October, is insufficient, as it shows only one publication, while the statute requires the publication to be made once a week for four consecutive weeks.</p> <p>4. Same — Evidence—Tax Deeds.</p> <p>When, by proper averments and evidence, it is. affirmatively shown that proper notice of a tax sale has not been given, or that the proof of such notice has not been made in substantial conformity with the statute, the sale will be adjudged invalid, notwithstanding a tax deed in proper form may have been duly executed and recorded.</p> <p>5. Tax Deeds — Action to Cancel — Subsequent Deed.</p> <p>In an action to cancel a tax deed and for possession of the land, the fact that defendant averred in her answer, in addition to the title derived from the tax deed, a subsequent treasurer’s deed executed to her after the commencement of the action, which was not denied by plaintiff, could not defeat plaintiff’s action where the subsequent deed was not before the court and the court was not advised of its contents.</p> <p>6.- Tax Sales — Invalid Sales — Liens.</p> <p>One purchasing land at an invalid tax sale has a lien upon the land for the taxes for which it was sold and for subsequent taxes paid.</p>

<p>1. Mines and Mining — State School Lands — Leases—Cancellation.</p> <p>Where parties leased from the state board of land commissioners certain school land for the purpose of prospecting for mineral, and in their application 'for the lease stated that the lands had no known value for mining purposes and that no development had been done upon the land by any one, and at the time of making their application for a lease they knew that the lease they sought would probably include the workings of certain placer claims which were then being worked and upon which large sums of money had been expended, and with proper inquiry could have ascertained that the boundaries of the land sought to be leased did include said placer workings, their action in procuring the lease was fraudulent and the state board of land commissioners was justified in cancelling their lease.</p> <p>2. State Board of Land Commissioners — Cancellation of Leases —Constitutional Law.</p> <p>Section 3637, Mills’ Ann. Stats., which provides: “If, through any fraud, deceit or misrepresentation, .any party or parties shall procure the issuing of any lease for state lands, the board shall have the authority to cancel any such lease,” is not unconstitutional on the ground that it confers upon the state land board judicial power, and the land board has authority under the statute to proceed to investigate an alleged fraudulent lease, to hear witnesses and, if convinced that such lease was procured through fraud, to cancel the lease. But the action of the board is not final.</p>

<p>1. Chattel Mortgages — Conversion—Evidence.</p> <p>A mortgagor delivered grain on which he had previously-executed a chattel mortgage to a milling and elevator company. Upon inquiry by the mortgagee of the manager of the company he was informed that the mortgagor’s grain was there but not paid for, but the manager refused to deliver it to the mortgagee on demand, and subsequently answered writs of garnishment, on judgments against the mortgagor, that the company was indebted to the mortgagor for the value of the grain. In an action by the mortgagee against the milling company for conversion, there was no other evidence of a purchase of the grain. Held, that plaintiff was entitled to recover although the chattel mortgage was not recorded and at the time the grain was delivered to defendant it had no knowledge of the chattel mortgage.</p> <p>2. Chattel Mortgages — Unrecorded—Purchaser Without Notice. One who purchases property covered by an unrecorded chattel mortgage without actual knowledge of the existence of the chattel mortgage, takes a good title as against the mortgagees.</p> <p>3. Same.</p> <p>An unrecorded chattel mortgage is good as between the immediate parties thereto, and a failure to record it is available only to persons having some right or interest in the property.</p> <p>4. Chattel Mortgage — Delay of Mortgagee In Taking Possession.</p> <p>Delay of a mortgagee in taking possession of mortgaged chattels after default of the mortgagor is immaterial as against a person without interest. A delay of more than thirty days would defeat the mortgagee’s title if the property he found in the hands of an innocent purchaser, or in the custody of an officer at the suit of a creditor of the mortgagor, but one who held the property for the mortgagor could interpose no obstacle to the mortgagee’s possession which the mortgagor could not interpose.</p>

<p>Pleading — Contracts—Judgment on Pleadings.</p> <p>Plaintiff’s complaint alleged an employment for one year by defendant and that, before the expiration of the term, in consideration of his resignation, defendant agreed to continue his salary for the balance of the term at a reduced rate, and the failure of defendant to pay. Defendant admitted the employment of plaintiff for one year, his resignation and an agreement to pay him the smaller salary the balance of the term, but alleged that the agreement to pay plaintiff the smaller salary for the balance of the term was in consideration that plaintiff should perform services for defendant the balance of the term, and that plaintiff, without defendant’s consent, quit his employ and refused to perform the services. Held, that the pleadings presented an issue of fact, and that it was error to render a judgment for plaintiff on the pleadings.</p>

<p>1. Corporations — Directors—Sale of Corporate Assets — Fraud.</p> <p>Where the majority of the directors of a mining corporation, without the consent of the stockholders, sold to other directors treasury stock of the corporation in payment of debts due by the corporation to- the purchasing directors, the sale was constructively fraudulent and voidable at the suit of the corporation or the stockholders, although the sale was for a fair price and without any actual fraud, and although the purchasing directors did not vote on the resolution authorizing the sale.</p> <p>2. Same — Equity—Pleading.</p> <p>Where a majority oí the directors of a corporation issued to other directors treasury stock of the corporation in payment of bona fide debts owed by the corporation to the purchasing directors, in ari action brought by stockholders of the corporation to cancel the certificates after the debts in payment of which the certificates were issued were barred by the statute of limitation, a complaint which failed to offer to do equity by making some provision for the debts was insufficient to sustain the action. And a decree cancelling the certificates without making some ¿vision for the payment of the debts is bad, and will be reed.</p> <p>3. Corporations — Sale of Stock Below Par.</p> <p>.The .board of directors of a corporation have power..to sell fulhpaifl' treasury stock of the corporation below par for what they deem it .to be worth.</p> <p>4, Mining Corporations — Powers of Directors — Lease.</p> <p>Where the certificate of incorporation of a mining company named as one of the purposes of the corporation the leasing of its property, and conferred upon the board of directors the management of its property, the board of directors had authority to give a lease on the mining property of the corporation without the consent of the stockholders:</p>

<p>1. Pleading — Motives—Striking Out.</p> <p>It is not error to strike out of a complaint allegations that are simply a recital of the motives of defendant in doing the acts complained of by plaintiff, and which add nothing to the cause of action stated.</p> <p>2. Pleading — Separate Causes of Action — Inconsistency—Demurrer.</p> <p>Inconsistency between separate causes of action in one complaint is not grounds for demurrer, but objection thereto must be taken by motion to require plaintiff to elect.</p> <p>3. Water Rights — Chattel Mortgages — Growing Crops — Damage to Security.</p> <p>The mortgagee in a chattel mortgage on growing crops may maintain an action for damages for impairment or destruction of his security against a water company which refused to supply water to the mortgagor and thus destroyed the crops.</p> <p>4. Same — Pleading.</p> <p>A complaint which alleged the ownership of land in plaintiff, and a right to water for irrigation from defendant’s canal; the renting of the land and the taking of a chattel mortgage on the crops to be grown by the tenant to secure the payment of the rent; the tender to defendant of the fixed rates for water rent for the amount of water plaintiff was entitled to; the refusal of defendant to furnish the water; the destruction of the crops resulting from defendant’s refusal to furnish the water and the insolvency of plaintiff’s tenant was sufficient to state a cause of action.</p> <p>5. Mortgages — Damage to Security — Maturity of Debt.</p> <p>An action by a mortgagee for damages for the destruction of his security is not premature because brought before the maturity of the mortgage debt.</p> <p>6. Damages — Pleading—Evidence—Variance.</p> <p>There is a fatal variance between a complaint which alleges damages for destruction of growing crops because of the failure of defendant, a water company, to furnish plaintiff with water for irrigation, and evidence which goes to prove that the acts complained of resulted in the depreciation of the market value of the land.</p>

<p>1. Contracts — Infants.</p> <p>One who contracts with an infant cannot avoid liability on the contract because of such infancy.</p> <p>2. Contracts — Tenants in Common.</p> <p>If a tenant in common in real estate occupy the whole estate under an oral agreement to pay his cotenant for the occupancy, the latter may recover for the same in an action at law.</p> <p>3. Evidence — Summons—Authentication.</p> <p>A summons purporting to have been issued by a justice of the peace, but which was not certified or authenticated, is not admissible as evidence.</p>

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

<p>1. Appellate Practice — Abstract of Record — Evidence.</p> <p>Where the abstract of record does not contain sufficient of the evidence to enable the appellate court to determine whether or not errors were committed by the trial court in excluding or admitting evidence, or whether the evidence was sufficient to sustain the judgment, assignments of error based upon those grounds will not be considered.</p> <p>2. Appellate Practice — Abstract of Record — Instructions.</p> <p>Where the abstract of record does not contain all the instructions given, assignments of error based upon instructions given or refused will not be considered, but it will be presumed that the court properly applied the law to the facts adduced at the trial, and that the refused instructions were covered by the instructions not appearing in the abstract.</p> <p>3. Appellate Practice — Abstract of Record — Parties — 'Amendment of Summons.</p> <p>An assignment of error based upon a ruling of court allowing a motion to amend a summons by adding names thereto as parties plaintiff making them parties to the action, will not be considered where the abstract of record does not set forth the motion nor state the grounds upon which it was based.</p> <p>4. Practice — Appeal from Justice to County Court.</p> <p>Upon the perfection of an appeal from a justice of the peace to the county court, the cause stands for trial de novo, and thereafter the procedure is governed by the practice for the disposition of causes in the county court.</p> <p>5. Same — Parties—Amendment.</p> <p>The county court has authority upon motion in the furtherance of justice to amend any pleading or proceeding by adding or striking out the name of any party, and where the abstract of record does not contain the motion upon which new names of parties plaintiff were added to a summons, it will be presumed that it was allowed in the furtherance of justice.</p> <p>6. Same — Waiver.</p> <p>By proceeding to trial, a defendant waived objection to a ruling of court allowing a motion to amend the summons by adding thereto the names of additional parties plaintiff.</p>

<p>1. Appellate Practice — Written Evidence — Findings Not Conclusive.</p> <p>The rule that the appellate court is concluded hy the findings of the trial court on conflicting evidence, does not apply where all the material evidence is in writing.</p> <p>2. Sales — Acceptance—Water Rights — Commission.</p> <p>Defendant offered .to sell his land at a certain price, and stated that the water rights to be conveyed with the land consisted of certain interests in certain ditches and a reservoir named and all water rights to the land belonging. Plaintiff, his agent, notified him that he had a purchaser at the price, the money being deposited in bank to close the sale, but directed defendant to include in his deed certain shares of stock in a reservoir company not mentioned in defendant’s statement of water rights. Defendant declined to include the reservoir stoclc and the purchaser withdrew his money from the bank and declined to purchase. Held, that plaintiff had not secured a purchaser able, ready and willing to purchase on the terms offered hy defendant, and plaintiff was not entitled to commissions.</p> <p>3. Same.</p> <p>Defendant offered land for sale at a certain price. Plaintiff, his agent, notified him that he had a purchaser at the price with money deposited in bank, and directed defendant to include in his deed certain shares of stock.in a reservoir company not included in defendant’s offer. Defendant wrote his agent, declining to include the reservoir stock in the sale at the price offered, but stated a price at which he would sell the reservoir stock, and at the same time wrote to his attorney, directing him to prepare a deed to the proposed purchaser and directed him not to include the reservoir stock in the deed, but stated he would transfer the stock “to the purchaser by blank power of attorney.” Defendant refused to include the reservoir stock and the sale failed. Held, that defendant’s letter to his attorney was not an acceptance of the offer by the proposed purchaser, and plaintiff was not entitled to commission.</p>

<p>Damages to Property — Offer to Repair.</p> <p>In an, action for damage to plaintiffs property by the tortious acts of defendants in blasting out a road bed for a railroad, evidence that defendants offered to repair the injuries to plaintiff’s buildings, which constituted the greater part of the injuries complained of, and that plaintiff declined the offer, was no defense to the action.</p>

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

<p>1. Partnership — Judgments—Summons.</p> <p>Tlie only judgment that can he rendered on a partnership debt, is one against the copartnership jointly, and the partners summoned or appearing in the action whether, summons is served upon all or one or more of the defendants.</p> <p>2. Partnership — Bills and Notes — Judgments—Merger.</p> <p>A judgment on copartnership promissory notes merged the notes into the judgment, although only one of the partners was served with summons or appeared in the action, and suit could not thereafter be maintained on the notes against the partners not served.</p> <p>3. Same.</p> <p>The method provided by sections 235-240 of the code whereby partners not served in an action against a partnership may be made individually liable on the judgment rendered therein against the partnership, is exclusive.</p> <p>4. Judgments — Assignment—Satisfaction.</p> <p>Where a judgment was assigned after satisfaction thereof had been entered, the assignee cannot question the release and satisfaction if it was good as against the assignor.</p> <p>5. Judgments — Satisfaction—Consideration—Bills and Notes.</p> <p>A promissory note executed by a judgment debtor to the i judgment creditor is a sufficient consideration for the release and satisfaction of the judgment, and the satisfaction of the judgment is a sufficient consideration for the note.</p>

<p>1. Pleading — Departure—Waiver.</p> <p>A departure in the pleadings is waived by going to trial without raising an objection to such departure.</p> <p>2. Same — Harmless Error.</p> <p>An erroneous ruling of the trial court holding that a departure in plaintiff’s reply was not waived by defendant’s going "to trial without objecting thereto, was not prejudicial to plaintiff where the court, by its findings of fact, decided the issue raised by the reply.</p> <p>3. Water Rights — Reservoir Sites — Filing Map — Approval.</p> <p>The approval by the secretary of the interior of the map of a reservoir site filed pursuant to the provisions of the act of congress of March 3, 1S91, “subject to all vested existing' rights,” conferred no right to construct a dam upon land occupied as an agricultural claim under the pre-emption laws of the United States, as against the occupant.</p> <p>4. Reservoir Sites — Forfeiture—Jurisdiction.</p> <p>The state courts have jurisdiction to hear and determine questions of forfeiture of grants to reservoir sites under the act of congress of March 3, 1891.</p>

<p>Water Rights — Decrees—Conveyances.</p> <p>A decree adjudicating priorities of water rights awarded to a ditch two priorities, one as priority No. 40 for 4 cubic feet per second as of date May 1, 1874, another as priority No. 241 for 4.8 cubic feet as of date April 5, 1882. Exceptions to the decree were filed on thd ground that the evidence showed that priority No. 40 was included in a priority awarded to another ditch and that the construction 'of the -ditch was not commenced until in 1882. Thei decree was revised awarding it priority No. 218 for 4.8 cubic feet per second as of date April 5, 1882. Subsequently the owner of the ditch conveyed a water right in the ditch under priority No. 241. Held, that the priority awarded by the revised decree covered the same appropriation as was awarded priority No. 241 in the original decree, and the conveyance of a right under. No, 241 conveyed a right under the revised decree.</p>

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

<p> Error to the District Court of Montrose County. </p> <p> On Rehearing. </p>

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

<p>1. Contracts — Specific Performance — Pleading — Statute of Frauds — Authority to Sign for Another. •</p> <p>In an action to enforce specific performance of a contract to convey land, where one of the signatures to the contract was signed hy another party, a denial in the answer of the malting of the written contract was a sufficient pleading of the statute of frauds to entitle the defendant to the right to demand proof of the written authority of the party who signed the contract for another.</p> <p>2. Same — Ratification—Evidence.</p> <p>In an action to enforce specific performance of a contract required hy the statute of frauds to he in writing, where the statute of frauds was pleaded, ratification of the signing of the contract hy one party for another could he shown only in writing, and it was error to receive evidence of a ratification hy parol.</p> <p>3. Contracts — Specific Performance — Pleading—Evidence—Variance.</p> <p>In an action to enforce specific performance of a contract, where the complaint alleged a contract by four cotenants to convey a definite parcel of land owned hy them as tenants in common, and the contract offered in evidence was signed hy three of the parties and the name of the fourth party was signed to the contract hy another party and there was no evidence of authority to sign the contract for said fourth party nor a ratification thereof hy him, there was a fatal variance between the contract pleaded and the contract offered in evidence.</p> <p>4. Same — Parol Contract — Part Performance.</p> <p>In an action for specific performance of a contract to convey land, where the complaint alleges a written contract, evidence of a parol contract taken out of the statute of frauds hy part performance is inadmissible to support the action.</p> <p>5. Contracts — Specific Performance — Pleading—Evidence—Variance.</p> <p>In an action to enforce specific performance of a contract to convey conflicting territory between two mining claims, a contention that defendant held the land for plaintiff’s benefit under the doctrine of resulting trust because of the prior discovery and location by plaintiff and the institution of adverse suits, will not be considered where such case is neither presented by the pleading nor supported by the evidence.</p>

<p>1. Contracts.</p> <p>Where material was furnished and services performed by plaintiff at defendant’s request, defendant is liable to plaintiff therefor, and an agreement, to which plaintiff was not a party, between defendant and another person, is immaterial.</p> <p>2. Evidence — Appellate Practice.</p> <p>Appellant cannot complain of the admission of evidence which was admitted at his own instance and was afterward stricken out on his motion.</p>

<p>1, Appellate Practice — Findings—Equity Proceedings.</p> <p>The rule that the findings of fact of the trial court upon conflicting evidence, where there is substantial evidence to support them, are conclusive upon the appellate court, applies to suits in equity as well as in actions at law.</p> <p>2. Evidence — Fraud—Conveyance—Trusts and Trustees.</p> <p>In an action to have the grantees of certain interests in a mining claim declared to hold the same as trustees for the grant- or on the ground that the conveyance from the grantor was procured through fraud, the evidence examined and held sufficient to support the findings of the trial court in favor of defendants.</p>