Volume 27 — Colorado Court of Appeals Reports

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>Error to Saguache Distinct Court. Hon. C. C. Holbrook, Judge.</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>1. Promissory Note — Subscribed by Officers of a Corporation, with Their Title Affixed, following the name of the corporation, and bearing the corporate seal, construed to be the undertaking of the corporation alone, although in the body of the note the makers were described by the words, ‘ ‘ I, we, and each of us, ’ ' and though there was no preposition following the corporate name. (33, 34.)</p> <p>8. Evidence — Parol Admissible, to show the real intent of the parties to a written contract, where upon its face an uncertainty as to such intent appears, .e. g., where following the name of a corporation, affixed to a promissory note appear the names of the president and secretary, followed by their respective titles. (34.)</p> <p>3. Estoppel — By Record. One who has admitted in his pleadings that a promissory note is the note of the corporation, the name of- which is subscribed thereto, will not be heard to afterwards assert in the same action that the officers of the corporation subscribing it acted without authority and are therefore personally liable thereon. (38.)</p> <p>4. Pleading — Amendments—Discretion. Plaintiff's reply admitted that the promissory note which was the foundation of the action, was the note of a corporation, the name of which was subscribed thereto. It had presented the same note, as a claim against the corporation, in bankrupty proceeding, and had adduced sworn testimony to sustain it as such. Beld it was not an abuse of discretion to deny its application to withdraw the admission containing the reply. (38, 39.)</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>Error to Denver District Court. Hon. John H. Denison, Judge.</p>

<p>1. Appeal and Error — Finding Against Evidence Disregarded. A policy of insurance against loss by reason of injuries to a servant, provided that where any physician other than those in the service of the insurer should be called, the insurer should be liable only for the cost of Ufirst aid.” The physician employed was not in the service of the insurer, but was called at its instance. He made several visits, and charged a bill of $50.00. He testified that this was the fair value of the first visit, and there was no testimony to the contrary. The judgment was affirmed, although the judge before whom the issues were tried, without a jury, found that the value of the first aid was $25.00. (57.)</p> <p>2. -Seasons assigned by the Trial Judge will be disregarded if there is no error, in the judgment. (57.)</p>

<p>Mining Partnership — Authority of Partner. The managing member of a mining partnership has no implied authority to execute a promissory note in the firm name for his private debt; nor for money borrowed on account of the partnership, where the operations of the partnership are highly profitable, and there is no occasion for the loan. (60.)</p>

<p>Error to Denver District Court. Hon. Chas. C. HOLBROOK, Judge.</p>

<p>Error to Bio Grande District Court. McHendrie, Judge. Hon. A. Watson</p>

<p>Error to Otero District Court. Hon. J. E. Rizer, Judge.</p>

<p>1. Eminent Domain — Way of Necessity, at common law is an easement implied when one grants land separated from the public highway by land which he retains, and is grounded upon the maxim that every grant includes that without which the grant will be without effeet. (79.)</p> <p>The grant, and not the necessity, creates the right. (79.)</p> <p>But considering that the taking of such a way would not be a taking without the consent of the owner, beeaúse consent is conclusively presumed in every such case, and that such taking would not require the payment of compensation, it was held impossible to conclude that the phrase is used in this limited sense in the constitution. (Art. II, See. 14.)</p> <p>The private ways referred to in the constitution are such as are indispensable to the enjoyment of the lands in respect to which the way is claimed; and they are not limited to ways desired for agricultural, mining, milling, domestic or sanitary purposes, as are those for reservoirs, drains, flumes and ditches. (80, 81.)</p> <p>2. - The Necessity for the Courts. The courts may-determine what constitutes a private way of necessity, in any particular case, unless restrained by the legislature. Where the petition showed that petitioner had acquired title to a mountain park in' the vicinity of a summer resort, one of the principal attractions to such resort, and that by reason of the conformation of the country the only feasible and practicable way to gain access thereto was over the lands of respondent, held that these averments brought the ease within the statute. (87.)</p> <p>3. Constitutional Law — Construction of the Constitution. The construction given by the court of final resort of another state to a constitutional provision which we have adopted from that state is persuasive, if .not controlling, in the construction of our own fundamental law. (81.)</p> <p>4. -Legislative Construction. It will be presumed that the first general assembly, sitting at so short a time after the adoption of the constitution, and composed in part of the members of the eonstituional convention, did riot intend, in their enactments, to contravene the provisoins of the constitution, so recently adopted. (82.)</p> <p>The court referred to other sections of the statute as supporting the construction placed upon the statute in question. (86.)</p> <p>5. Corporation — Articles of Association Construed. A corporation was organized to acquire an extensive mountain park in the neighborhood of a summer resort; to construct private roads thereto from the public highways leading to the resort, and acquire the rights necessary therefor; and operate vehicles over the same. These powers were held sufficiently broad to entitle the corporation to avail itself of See. 2461 of the Revised Statutes. (77, 78, 87.)</p> <p>fl. -Title Not Indicating the Business to Be Carried On, as required by the statute (Rev. Stat., See. 846), is still a corporation de facto, and may exercise the power of eminent domain. (78.)</p>

<p>1. Pleadings — Motion for Judgment is not to take the place of a demurrer. (93.)</p> <p>2. -During Trial. The practice of moving for judgment on the pleadings after going to trial condemned. (93.)</p> <p>3. --- When Allowed, only where there is an admission that preeludes a recovery, or the ease stated is such that if established by proof no recovery can be had. (92.)</p> <p>4. - Presumptions. Where defendant moves for judgment on the pleadings, pending the trial, all the allegations of the complaint are taken as true. (92.)</p> <p>And the moving party admits the falsity of all his own allegations which are denied by his adversary. (93.)</p> <p>5. Attorney’s Lien — ■When Allowed. An attorney who, upon the retainer of the complaining party, and upon an agreement that he shall receive as his compensation a specified share of the recovery, has instituted an action for a tort, and has notified the defendant of his claim for a lien, is entitled to a lien upon the cause of action for the value of his services. (Rev. Stat., Secs. 242, 243.) (93.)</p> <p>6. -Statute Construed. Nothing in the statute indicates a purpose to exclude causes of action for personal injuries; and in view of the recent development of our factory, power and transportation systems, and mining industries, there is every reason why such causes of action should be included therein. (93.)</p> <p>7. -Collusive Settlements, with the client, to defeat the just claim of the attorney, are not favored. (94.)</p> <p>8. Default — Motion to Vacate is in the discretion of the eourt. (96.)</p>

<p>Error to Denver District Court. Hon. Greeley W. Whit-ford, Judge.</p>

<p>Error to Jefferson District Court. Hon. H. S. Class, Judge.</p>

<p>Divorce — Review—State as Party. The parties were married upon an acquaintance of ten days, the lady being then of the age of 34 and the groom past 60. At the end of six months she sued for a divorce, demanding counsel fees, temporary alimony, and fifteen thousand dollars as permanent alimony. The husband filed a eross-complaint. Both parties alleged cruelty. Verdict for defendant, and decree accordingly. No errors having occurred during the trial, and the evidence being sufficient to support the verdict, the court, notwithstanding the public interest, declined to disturb the judgment. (110.)</p>

<p>Error to Logan District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to Gilpin District Court. Hon. Harry C. Riddle, Judg.e</p>

<p>Appeal from El Paso District Court. Hon. J. W. Shea FOR, Judge.</p>

<p>Error to Weld District Court. Hon. Neil F. Graham, Judge.</p>

<p>1. Re-Delivery Bond — Second Levy on Same Goods — Effect. The levy of an attachment upon goods attached in a former action by the same plaintiff and for which a re-delivery bond-has been given, has not the effect to discharge the surety in such bond. (188.)</p> <p>To effect sueh discharge the goods must be sold by the sheriff, pursuant to the second attachment, or must, by the act or connivance of the plaintiff, be put beyond the reach of the surety or his principal.</p> <p>A second levy by the sheriff in violation of the directions of the plaintiff has not the effect to discharge the surety in a redelivery bond given upon the first. Schneider v. Wallingford, 4 Col. Ap. 150, distinguished. (179, 184.)</p> <p>2. Process — Plaintiff’s Light to Control. The plaintiff is entitled to control his process and direct upon what properties his attachment or writ of execution shall be levied. (186.)</p> <p>If the sheriff violates his instructions the plaintiff is not liable for the consequences of his misconduct. (186.)</p> <p>3. Surety Companies — Contracts of — Construction. The contracts of surety companies are construed like other contracts. The rule that the. contract of a surety is strictissimi juris has no application. (187.)</p>

<p>Error to Otero District Court. Hon. J. E. Rizer,- Judge.</p>

<p>Error to the Denver District Court. Hon. Carlton M. Bliss, Judge.</p>

<p>1. Evidence — Shifting Burden of Proof. When the owner of an animal bailed to an agister shows the bailment, demand, and failure to return, he establishes a prima faeie case against the agister. (205.)</p> <p>If the latter, under proper pleadings, shows the éscape of the animal in a manner which dispels every inference of negligence on his part, the burden shifts to the plaintiff to establish negligence. (206..)</p> <p>2. Agister — Liability. An agister is not an insurer of the safe return of the animal bailed to him. He is liable only for want of ordinary care. (206.) X Appeals and Error — Verdict Upon Conflicting Evidence will not be listurbed. (206.)</p> <p>4. -What May Be Assigned for Error. Trial by a special jury instead of the regular panel -will not avail on appeal, where no objection thereto appears in the reeord. (207.)</p> <p>5. Pleadings — Agreement Supplying Absence Of. Complaint against two. A third defendant was atferwards joined and summoned, but no complaint was filed as against him, nor any answer from him demanded. The cause was set for trial by agreement. Application for a default as to the third defendant two or three days after the trial was properly denied upon the ground that apparently any pleading on his part had been waived by agreement. (206.)</p>

<p>Error to Las Animas District Court. Hon. A. Watson MIcHendrie, Judge.</p>

<p>Error to Pueblo District Court. Hon. J. E. Rizer, Judge.</p>

<p>1. Judgment — Name of Plaintiff. Action by one Wyatt upon a judgment recovered in another state. It was contended that the exemplification produced showed a judgment recovered by Morris and not by Wyatt. But the reeord declaring that “Nannie Morris, whose name is now. Nannie Wyatt, be and hereby is,” etc., the contention was rejected. (218.)</p> <p>2. - Of Another State. Any duly authenticated transcript of a judgment recovered in the court of another state is, in general, entitled to full faith and credit in idle courts of this tate. (218, 219.)</p> <p>But the courts of the state where the judgment of another is sought to be enforced will inquire (1), As t.o whether the court in which a judgment was rendered had jurisdiction; (2), Whether it was given upon the penal statute, and (3), As has been held, whether the law under which it was recovered is repugnant to justice, or good morals, offends the policy of the latter state, or is calculated to injure such state or its citizens. (219.)</p> <p>Each state should reeognize and enforce the public acts and judgments of every sister state, not coming within one or more of the exceptions.</p> <p>3. Statutes — Extra Territorial Effect. As a general rule the laws of one nation are without extra territorial effect, except upon the principles of comity. As between the states of this Union the same rule obtains, limited by the full faith and credit clause of the Federal eonstituion. (218.)</p> <p>4. -Penal — What Are. The name ascribed to a statute by the legis' lature which enacts it, or the courts of the same jurisdiction, is not the test of its character as to whether penal or not when the question arises in another jurisdiction; but whether it is in essence and effect a provision for the punishment of an offense against the public, or the grant of a civil right to 'a private person. (223.)</p> <p>A statute of Texas allowing the recovery of usurious interest paid to the usurer was held not a penal statute, in such sense as to prohibit a recovery here, upon a judgment given thereunder in one of the courts of Texas. (224.)</p>

<p>Error to Denver District Court. Hon. Chas. C. Holbrook, Judge.</p>

<p>1. Conveyances — Acknowledgment. A certificate appended to a tax deed declared that “personally appeared,” ete., one known to the officer granting the certificate to he treasurer of the county, and “the identical person who executed the conveyance, ’ ’ — not in any manner declaring any acknowledgment by the person so appearing. The certificate ivas held a nullity. (235.)</p> <p>And its defects not cured by any presumption arising from lapse of time.</p> <p>2. Evidence — Presumptions. Lapse of time has not the effect to raise the presumption of the acknowledgment of a conveyance of land, from the appearance, appended thereto, of an official certificate that the grantor personally appeared before the officer granting the certificate, without more. (235.)</p> <p>3. Tax Titles — Deed Not Acknoioledged, is void. (236.)</p> <p>4. Limitations — Color of Title. A treasurer’s deed not acknowledged is not color of title. (237.)</p>

<p>1. Contracts — Illegal. No recovery ean be had between the original parties upon a promissory note given as part of a scheme to defraud the creditors of the jiayee. (244.)</p> <p>2. Maxims — Potior est oondilio defendenUs. The law will not lend its aid to either of the parties to an executory contract, the purpose of whielfcwas to defraud a third. (245.)</p>

<p>1. Evidence — Measure of Proof. The plaintiff must produce a fair preponderance of evidence upon every, question of fact involved in the issues. (247.)</p> <p>2. New Trial — Several Verdicts. There was a seeming conflict in the evidence, and there appeared to have been three trials at nisi prius. The court declined to disturb the judgment. (247.)</p>

<p>1. Execution Sale — Redemption. In-the absence of a statute neither the debtor, his grantee, nor his creditor, is entitled to redeem from an execution sale of land. (249.)</p> <p>2. --Mortgagee’s Right. A mortgagee of lands may discharge a judgment which is senior to his mortgage, and be subrogated in equity to the right of the judgment creditor.</p> <p>If entitled to redeem from a sale of the lands under such prior judgment, which is not decided, he must not delay until a junior judgment creditor, by redemption, and a sale pursuant thereto, has succeeded to the rights of the creditor in the senior judgment (Rev. Stat., 3653, 3654). (249.)</p> <p>3. - Sheriff’s Peed, upon redemption sale, made by a judgment creditor, relates to the lien of the prior judgment, and supersede;, an intervening mortgage. (250.)</p> <p>The court recommends an amendment to the statute, to the effect that all liens upon real estate shall be paid according to their priority of reeord. (251.)</p>

<p>1. Instructions — In Actions Founded Upon a Statute, an instuetion is generally proper if it fairly follows the language of the statute, e. g., in an action under Rev. Stat., Secs. 3233, 3238, for an injury to plaintiff’s premises by seepage from defendant’s ditch, attributed to negligence in the construction, maintenance and operation thereof, an instruction that defendant was “under duty to keep its ditch in good condition, maintain its embankments in good repair, and prevent water wasting therefrom,’’ was approved. (254.)</p> <p>2. Seepage — Injuries From — Evidence. Action for an injury to plaintiff’s premises alleged to have been occasioned by seepage from defendants ditch. Evidence held sufficient to sustain a recovery by plaintiff. (255-257.)</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>Error to Denver District Court.. Hon JOHN H. Denison, Judge.</p>

<p>Error to La Plata District Court. Hon. W. N. Searcy, Judge.</p>

<p>Error to Denver District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to Jefferson District Court. Hon. H. S. ClAss, Judge.</p>

<p>Error to Denver District Court. Hon. John H. Denison, Judge.</p>

<p>Error to Weld District Court. Hon. Robert G. Strong, Judge.</p>

<p>Error to Denver District Court. Hon. H. P. Burke, Judge.</p>

<p>Executors and Administrators — Administration—Presentation of Claims. Defendants had taken up at the bank a note of their father, giving in lieu thereof their own note, which they afterwards paid. Upon the decease of the father, defendants, by request of all interested parties, assumed possession of the properties pertaining to his estate, .and managed the same for several years. The will of the father being afterwards admitted to probate, and another being appointed administrator with the will annexed, defendants were ordered by the County Court to file an aecount of their administration while managing the- estate. Their account, filed in compliance with this order, was approved by the County Court. On appeal, the District Court disallowed so much of their account as related to the note of the father which they had paid to the bank, solely upon the ground that the'note of the father had not been presented to the County Court for payment within the period of one year. Held, that inasmuch as the note of the father had already been discharged it could not be presented for payment, and the account of the defendants having been presented within the year following the appointment of the administrator, the statute was satisfied. (HU, 315.)</p>

<p>1. Civil Action — When Expense of Defending Recoverable. In general no action is allowed for the expense of defending a civil action. Instances have occurred where, the action being vexatious and without any reasonable cause, a recovery has been permitted against either the party suing, or the one who instigated the suit. (317.)</p> <p>2. - Pleading.. The eomplaint must allege that the action was vexatious, and without reasonable or probable cause. In the absence of such allegation there can bo no recovery. (317.)</p> <p>3. —•— Damages--Proximate Came. The complaint alleged that defendant, an attorney, employed plaintiff to audit the books of a cigar company, not to ascertain the company’s condition, but with the seeret purpose, concealed from plaintiff, to found upon plaintiff’s report a criminal accusation against the manager of the company, and to use plaintiff in the prosecution of such accusation; that plaintiff having made a report of his examination, defendant, by means thereof, induced the district attorney to procure an indictment against the manager, and appearing for the people at the trial of such indictment, so conducted himself as to cause the accused manager to believe that plaintiff had instigated the prosecution; that in this belief the manager, being acquitted of the charge laid against him, instituted against plaintiff an action'for malicious prosecution; that plaintiff defeated sueh action, but expended $1,000 in the defense thereof, which he demanded of defendant. Held, that the misconceived action of the manager was the direct and proximate cause of plaintiff’s loss, and was not the natural consequence of what was alleged against defendant. (320.)</p> <p>4. Kbaud — A Secret Purpose in Employing One to do a Lawful Act, in a lawful manner, is not a fraud upon the person employed. (320.)</p>

<p>Error to Weld District Court. Hon. Neil F. Graham, Judge.</p>

<p>Error to Weld District Court. Hon. Neil F. Graham, Judge.</p>

<p>1. Principal and Agent — Authority to Convey Lands. Under Bev. Stat., see. 2660, authority to convey lands oan be conferred only by writing. (329.)</p> <p>2. - Ratification, of the acts of the agent who assumes to convey the lands of his principal, without written authority, can be effected only by writing. (329.)</p> <p>A conveyance by the principal to a third person is an effectual repudiation of the aet of the agent. (330.)</p> <p>3. Forfeiture — One Assuming to Declare, Must he Able to Perform on Sis Own Part. Plaintiff held the promissory note of the Newmans secured by deed of trust of lands. Default having been made in the payment of interest, an agreement was entered into extending the time therefor, and providing that if the conditions thereof were not performed by defendants, by a date specified, upon the forfeiture so resulting a warranty deed of defendants re-conveying the premises, and then deposited in escrow, should be delivered to plaintiff in full satisfaction of defendants’ promissory note. Defendants failed in the performance of the conditions of this agreement, and conveyed the premises to a third party. The deed of defendants, so deposited in escrow, had been delivered to plaintiff. Plaintiff prayed confirmation of this conveyance, the annulment of the deed of defendants to the third party, and possession of the lands. It appearing that plaintiff had sold and assigned the note of defendants to a third person, it was held that he had thereby disabled himself to perform his undertaking in respect thereto and for this, among other reasons, was not entitled to the relief prayed. (330.)</p> <p>4. Evidence — Burden of Proof. It seems that whoever assails a conveyance, as accepted with notice of the rights of another, or with notice of a fraudulent intent on the part of a grantor in such conveyance, has the burden of proving these allegations. (329.)</p> <p>5. Parties — Indispensable. Where the plaintiff relies upon a contract by the terms of which the defendants are entitled to the surrender of a promissory note, then held by the plaintiff, and it appears that plaintiff has</p> <p>assigned the note to a third person, the assignee is an indispensable party. (330.)</p> <p>6. Pleadings — Construed. The complaint relied upon an agreement, and a conveyance of lands, executed in the name of one of the defendants, by an attorney in fact. The answer denied the authority of the alleged attorney in fact, not pleading the statute of frauds. Parol evidence in denial of the authority was received below, and considered in the eourt of. review. (329, 330.)</p>

<p>Error to Mesa District Court. Hon. Thomas J. Black, Judge.</p>

<p>1. Contract — Illegal—Public Policy. Even in the absence of legislation upon the subject the courts will declare void any contract opposed to sound policy or good morals, either as to the consideration or the thing to be performed. (344.)</p> <p>In determining whether a particular contract contravenes public policy, the test is not always, or necessarily, what acts were thereby contemplated or the actual result, but rather whether the tendency of the contract is evil. (344.)</p> <p>In contracts for public supplies consideration of the most efficient and economical mode of meeting the public wants should control. Whatever tends to introduce other elements in the transaction is against public policy. (345.)</p> <p>In the year 1912 a general election was approaching, at which certain amendments proposed to the constitution were to be submitted. By statute the Secretary of State was required to publish these amendments in not more than one newspaper in eaeh county, and a maximum fee for such publica- . tion, greatly in excess of the actual cost, was prescribed. One Pearce, then Secretary of State, being a candidate at the same election, summoned before him the publishers of three newspapers then published in Conejos County, and in order to induce "the loyal and unstinted support" of these journals "to every nominee on the Democratic ticket," made a contract, letting to the publisher, of one of the three papers the publication of the amendments, at the maximum price specified by the statute, the publisher agreeing to divide the amount which he should so receive with the others, giving each one-third thereof. The aetual cost of publication was less than $75.00. ■ The amount agreed to be paid therefor, under the arrangement made by the Secretary, and which was actually paid, was nearly $1800.00. Seld that the contract was void, not only as tending to extravagance and waste in the use of the public moneys, but to debauch the public press, and jeopardize our public institutions. (339, 346-348.)</p> <p>The court expresses regret that it is unable, in this action, to require the defendant to return to the public treasury the entire sum which he received under the scandalous and illegal agreement, and call the attention of the general assembly to the crying need, for legislation which will prohibit the repetition of like misconduct by public officials, with suitable penalties for the infraction of such regulations. (350.)</p> <p>2. Illegal Contract — Complaint Not Disclosing. The rule that if the complaint fails to disclose illegality in the transaction upon which the plaintiff relies, or if the plaintiff does not require the aid of such transactions, the defendant is not allowed to set up an illegal agreement or consideration, to which he was party, is not the law in this jurisdiction. (349.)</p> <p>Illegality appearing in the evidence is fatal, whether coming from one side or the other.</p> <p>3. Precedents — Dffect. Where by well settled judicial precedents it has been determined that contracts of a particular character are opposed to public policy, this declaration of the law is equal in force to a statute. (344.)</p>

<p>Error to Adams District Court. Hon. Chas. McCall, Judge.</p>

<p>Vacating Judgment — Effect. A writ of garnishment issued upon a judgment is without vitality after the judgment is vacated. Such ancillary proceedings fall with • the judgment.</p>

<p>1. Corporation — Transfer of Stock by Deed. Corporate stock, though personalty, may be effectually transferred by deed. The statute providing that it shall be transferred upon the books of the corporation, is for the protection of innocent purchasers. As between the parties, and all taking with notice, a transfer by deed is effectual. (363, 364.)</p> <p>A mortgage of lands, after the description thereof, contained a clause to the effect that all ditch and water rights and stock in an irrigating company named, was also conveyed. One having notice of the mortgage, and of the stock there referred to, procured a certificate for such stock to be issued to himself, by a fraud practiced upon the officers of the corporation. Held that the stock was subject to mortgage. (363, 364.)</p> <p>2. Chattel Mortgage — Annual Statement of the Debt. Even though the annual statement of the indebtedness secured by a chattel mortgage is not recorded, as required by statute (Rev. Stat., sec. 515), the mortgage is valid as to the mortgagor, as to an assignee of the chattels who has covenanted to pay it, and one who, not being a bona fide holder claims under such assignee. (364.)</p>

<p>Error to Prowers District Court. Hon. A. Watson Mc-Hendrie, Judge.</p>

<p>1. Promissory Note — Failure of Consideration. One who is induced to purchase stock in a corporation then being organized, by the representation that the corporation is to limit its operations to the shipment of fruit grown by its stockholders, and that only by uniting with it will he be able to secure its service in the shipment of his fruit, may defeat an action upon a promissory note given for the stock, by proof that in fact, the corporation engaged in a general commission business, and had refused, and confessed itself unable, to ship his fruit. (369, 370.)</p> <p>2. - Conditional Delivery. Where a promissory note is in the hands of the corporation payee, named therein, the maker may defeat an action thereon by showing under proper averment that he subscribed the paper, solely to enable the corporation to pledge it, temporarily, with a bank, as security for a loan, that the loan was-in fact made, and the note after-wards restored to the corporation. (Rev. Stat., see. 4479.) (371.)</p> <p>3. -Evidence — Parol Admissible, in an action upon a promissory note, to show that it was delivered for a special purpose. (371.)</p> <p>4. Cases Overruled — Explained or Distinguished. What is said in Cooper v. German Bank, 9 Colo. App., 169, as to the inadmissibility of parol evidence to show the purpose for which a promissory note was delivered, i* modified by later opinions of this court, and numerous opinions of the Supreme Court." Wells v. Colorado Company, 49 Colo. 508, commented upon and explained. (371, 372.)</p>

<p>1. Principal and Agent — Agent’s Authority — Evidence — Burden of Proof. Plaintiff seeking to charge defendant with the contracts of another, upon the ground that the latter, in making the contract, acted as agent of defendant, has the burden of proving the agency, and that the agent was acting within his authority. (381.) ' '</p> <p>The evidence examined and held insufficient to establish plaintiff’* case. (375, 387 379.)</p> <p>2. -- Known Limitations Upon the Agent’s Authority — Effect. One dealing with the agent in a matter which, as he knows, is in excess of an express limitation upon the agent’s authority, will not be heard to assert that the act of the agent was within the apparent scope of his employment. (381.)</p>

<p>Error to El Paso District Court. Hon. W. S. Morris, Judge.</p>

<p>Error to Morgan District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Promissory Note — Cotemporary Parol Agreement as to Payment. Of even date with a promissory note the maker subscribed for a share of stock in the corporation named as payee therein., In an action upon the note by an assignee after maturity, it was held that a parol agreement, cotemporary with the execution of the note, and upon the faith of which it was executed, to the effect that the note would be paid from the maker’s share in the dividends of the corporation, and not otherwise, was a complete defense to the action. (403-405.)</p> <p>2. Evidence — Parol Admissible, to show an agreement, cotemporary with the execution of a promissory note, as to the manner in which it should be paid, the action being by an assignee who took' subsequent to maturity. (405.)</p> <p>3. Contracts — Construed. Of even date with a promissory note, an agreement was framed to the effect that dividends accruing to the maker upon a share of stock in the -corporation named as payee, should be applied upon the note, and that “if said dividends shall not have fully paid said note at maturity, the same may be extended for one year. ’ ’ Held, that the note was not automatically extended by a deficiency in the dividends to discharge it. (411.)</p>

<p>Error to Denver District Court. Hon. George W. Allen, Judge.</p>

<p>Appeal and Error — Finding on Sufficient Evidence, against which there is nothing conclusive in the record, is decisive in the court of review.</p>

<p>Error to Denver District Court. Hon. George W. Allen, Judge. '</p>

<p>1. Railroads — Equipment Contract. Petitioners applied for an order requiring the receivers of a railroad to deliver into their possession two locomotives, sold to the railway company by petitioner's assignor, by contract under sees. 5523-5525 of the Revised Statutes, the title being retained until full payment of the purchase price. The contract complied in all things with the requirements of the statute. The price was $18,100.00, of which $500.00 remained unpaid. All this was admitted by the answer. It did not appear that any labor bills were overdue; that there was any other creditor whose claim was upon an equal footing with that of petitioner's; that the locomotives were necessary to the maintenance of the road, or that, to surrender them, would in any way embarrass the receivers. Held that the petitioners were entitled as of right to the order; an order of the District Court denying petitioners' motion for judgment on the pleadings was reversed, and that court directed to enter judgment requiring the receivers to pay the balance due under the contract, or surrender the locomotives. (452, 453.)</p> <p>2. Writ or Error — Where the Writ Lies — Final Judgment. Petition for an order requiring the receivers of a railroad to surrender certain locomotives sold to the railroad company by a conditional contract under Rev. • Stat., secs. 5523-5525, the title being retained until full payment of the purchase price. No cause, against the petition was shown by the answer. Held that an order denying the petition had the effect of a final judgment disposing of the rights of the petitioner and that error lay to review it. (456, 457.)</p>

<p>1. Appeal and Error — Depositions—Efeet. Where the evidence is by deposition the eourt of review has the same opportunity to judge of its weight as the eourt below. A decree manifestly inequitable, and against the weight of the evidence, reversed. (463.)</p> <p>2. Specific Performance — Discretionary. In general specific performance will be granted, only when, in view of all the circumstances, it is manifest that justice will be subserved. It is not sufficient to show a perfect legal obligation to perform the contract relied upon. It must also appear that specific performance will work no hardship nor injustice. (465, 466.)</p> <p>The evidence examined and the contract appearing to have been obtained by wilful misrepresentation of fact, and to involve serious loss to defendant, a decree directing specific performance was reversed. (466,467.)</p>

<p>Error to Denver District Court. Hon. J. W. Sheafor,. Judge.</p>

<p>1. Conveyances — Construction. In construing a conveyance of a lot in a townsite, reference may be made not only to the history of. the title as appears in the eonveyánees, and the other evidence contained in the record, but to the statutes relating to the townsite at the date of the conveyance. (474.)</p> <p>In construing a deed from the .probate judge, holding title to the town-site of Denver in trust for the occupants, it was assumed that sueh prohate judge had notice that only a particular survey and map of the townsite was of record in the office of the recorder of the county, and of the purpose and efforts of the city authorities, and the people of the territory, to control the bed of a certain stream within the townsite, and that he was influenced thereby in passing upon the proofs of occupancy by the claimant of a lot, and in the conveyance executed pursuant to such claim. (475, 476.)</p> <p>Where there are conflicting surveys arid maps of a townsite, an express reference to one of these, in a conveyance of a lot in such townsite controls, and limits and restricts all subsequent conveyances in the same ehain of title to the bounds and dimensions set down in sueh map. (476.)</p> <p>2. - Of Premises Abutting on a Water Course.. The proprietor of lands bounded by a water course may restrict" a conveyance of such lands to specified limits, reserving the water course, and any right in the frontage thereon; and when anything appears to indicate sueh intention in a conveyance of the premises, such intention will prevail over any presumption carrying the conveyance to the thread of the stream. (479.)</p> <p>The probate judge holding title to the townsite of Denver, in trust for the occupants, made a conveyance as sueh trustee, to a lot bounded on Cherry Creek. On the same day he conveyed to the City the whole bed of Cherry Creek not theretofore .conveyed. Meld to manifest an intention to separate the ownership of the bed of the stream from the ownership of the lot, and to overcome any presumption which might otherwise be indulged that the conveyance of the lot carried title to the center of the stream. (478.)</p> <p>3. Evidence — Judicial Notice, taken, of the character of a certain stream, and the devastation and damage occasioned by it, in seasons of flood. (476.)</p> <p>4. Denver — Boyd Survey — Mbert Survey. The probate judge of Arapahoe County, aeting as trustee for the occupants of the townsite of Denver, executed a conveyance of a lot bounded upon Cherry Creek, not referring to any map or plat for the description. The only map then upon reeord in the office of the recorder of the county was that of Ebert’s Surrey. Th« contrary not being shown, it was held that the conveyance must be construed to refer to the only map so of record. (476, 477.)</p>

<p>Error to Delta District Court. Hon. Thomas J. Black,. Judge. •</p>

<p>1. Venue — Change of Venue. Under see. 27 oí the Code of 1887 (Rev. Code, see. 29) it seems that in an action for the price of goods sold it is the privilege of the plaintiff to designate the county of his residence as the place of trial. An application for a change of the venue, in such ease, solely upon the ground that sueh county is not the proper county, should be denied. (486.)</p> <p>2. - Warner. Where an application for a change of the venue is improperly granted, the error is waived by proceeding to trial in- the county of the new venue, without objection. (486.)</p>

<p>Error to Denver District Court. Hon. H. P. BURKE, Judge.</p>

<p>1. Evidenge — Burden of Proof. One who asserts title to a mining claim, by relocation, upon allegation of non-performance by the original locator of the annual labor required by the statute, has the burden of showing such non-performance. (496.)</p> <p>2. Witness — Competency. In an adverse suit against the devisee of a decedent, the plaintiffs are not competent to testify in their own behalf. (Rev. Stat., see. 7267, Laws 1911, e. 229, see. 1.) (496, 497.)</p> <p>3. Mining Claim — Adverse Suit — Co-tenant Not Joined. A stranger interposing an adverse claim will not be heard, in the action in support thereof, to object to the non-joinder of a co-tenant of the applicant for patent. (498, 499.)</p>

<p>1. Writ of Error — Scire Facias — Limitation. Where the sci fa. to hear errors is not issued until after the lapse of three years from the rendition of the judgment complained of, the writ of error must be dismissed. (500.)</p> <p>2. Waiver — Special Appearance — Receipt for Abstract. An appearance only for the purpose of moving to dismiss writ of error is no waiver of the sci. fa. (500.)</p> <p>Nor is defendant’s receipt of a copy of the abstract and brief. (500.)</p>

<p>Error to Gunnison District Court. Hon. Thomas J. Black, Judge.</p>

<p>Error to the Denver District Cou/rt. Hon. W. S. Morris, Judge.</p>

<p>Error to Denver District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Libel — Priviledged Communication. If the occasion, the motive, and the cause are proper, and the communication made in good faith, malice is not implied, but must be proven by the person complaining. (517.)</p> <p>The mere falsity of the defamatory matter is not sufficient to raise a presumption of malice. (518.)</p> <p>Excessive or unnecessary publication, or employing the privileged occasion in bad faith, for any improper motive, tolls the privilege. (518.)</p> <p>A communication by the patrons of a public school, directed to the School District Board, complaining of a female teacher, and characterizing her conduct as “immoral or improper” was held, one of qualified privilege. (518, 519.) The testimony showing^some reason or excuse for the charges made, and the abseence of malice clearly appearing, it was held that the court should have directed a verdict for defendant. (521.)</p> <p>2. -Burden of Proof. The defendant has the burden of showing the priviledged character of the communication, and the plaintiff of showing circumstances which take it away. (518.)</p> <p>3. ' -Excessive Publication. The alleged libel was a communication by the patrons of a publie school to the Sehool District Board, impeaching the conduct of a teacher. It was shown to no one, other than patrons. At the meeting of the board to consider it, the subscribers to the petition were repuested to be, and were present; — also an attorney and a stenographer, not by the request or connivance of the petitioners. Held the petitioners were not responsible for the presence of the attorney or the stenographer. (520.)</p> <p>4. -- Justification Pleaded, even though not supported by the evidence does not take away the privilege. (520.)</p> <p>5. Words and Phrases- — Immoral or Improper. Doubted if the phrase should be construed to impute unehastity, when applied to the'conduct of a female. (522.)</p> <p>6. Jurors — Competency—Opinion. A juror admitted having formed and expressed an opinion as to the merits of the action but declared his willingness and ability to put it aside and try the issue solely upon the evidence. The denial of a challenge for cause held not error. (522.)</p>

<p>Error to Prowers District Court. Hon. A. Watson Mc-Hendrie, Judge.</p>

<p>1. Marriage — Common Law — Evidence. The evidence to establish a common law marriage must be clear, consistent and convincing, especially, where, to establish such marriage, will be to lay ground for the prosecution of either party for bigamy, or to invalidate a subsequent marriage in whieh all the requirements of the statute have been observed. (538, 539.)</p> <p>2. -Reputation, to establish a common law marriage must be general and uniform. (539.)</p> <p>Aetion for divorce and alimony, plaintiff claiming as a common law wife. The evidence examined, and held insufficient to establish the alleged relation. (535-538.)</p>

<p>1. Water. Right*. —Adjudication of Priorities — Single Stream. Semble. That an adjudication may be had of the priorities of consumers from a single stream.</p> <p>2. -Deeree — Change of Use. A consumer will not be heard to complain that in a decree adjudicating priorities another consumer is permitted to change the use from storage to direct use, where he is in no manner prejudiced by the change. (542.)</p> <p>3. —Change of Point of Diversion — Statute Construed. The statute regulating the proceeding for securing the right to change the point of diversion (Rev. Stat., sees. 3226-3229) applies only to the case of a water right already adjudicated. It is not error to permit a change of the point of diversion, in an original proceeding for the adjudication of the water rights upon a particular stream, all parties in interest being present, and no prejudice to those complaining being shown. (543.)</p>

<p>1. Appeal and Error — Finding on Conflicting Evidence, will not be disturbed. ' (547.)</p> <p>2. Vendor and Vendee — Waiver of Condition. An agreement between plaintiff and defendant for tbe exchange of lands, reeited that the lands of defendant were subject to a mortgage, of which $2,000 matured in 1912. Plaintiff was however distinctly advised, before concluding the exchange, that more than $2,000 of this mortgage would mature in 1910, and with this knowledge he accepted a conveyance from defendant and executed a conveyance of his own land to defendant. Held that he had waived this provision of the agreement and was not entitled to rescisión. (546, 547.)</p>

<p>Appeal and Beroe — Finding Against Evidence. Judgment reversed.</p>

<p>Error to Morgan District Court. Hon. H. P. Burke, Judge............</p>

<p>1. Appeals — Ba-ic of the Case. Where upon writ of error out of the Supreme Court the complaint is held to state a cause of action, this judgment is the law of the case upon a seeond writ of error in the Court of Appeals. (554.) ' ,</p> <p>2. Master and Servant — Wrongful Discharge — Damages. Where a sercant is discharged, without cause, before the lapse of the period of his employment, and the sole defense of the master is the failure of the servant to use reasonable effort to secure other employment, such failure is a matter of defense. It is for the master to show what the servant earned, or by reasonable effort might have earned, subsequent to his discharge, and during the period for which he was employed. (556.)</p> <p>A school teaeher, wrongfully discharged, and securing employment in a different locality, is entitled to an allowance for expenses reasonably incurred in seeking new employment and for an increase in his expenses, occasioned by the removal to the new locality, and may show such increase in his expenses, without pleading it. (555.)</p> <p>But the expense of removing the teacher’s family to the new locality can not be considered unless specially pleaded. (556.)</p>

<p>The ease ruled by the judgment in School District v. Nash, ante.</p>

<p>Appeal from, Denver County Court. Hon. George W. Dunn, Judge.</p>

<p>Pleading — General Venial. Aetiou by broker against land owner for commissions under a sale secured by the broker. If the land owner would assert the revocation of the broker’s authority previous to the sale he must plead it specially. (568.)</p> <p>The evidence examined and held to establish affirmatively that broker’s authority had not been revoked. (569.)</p>

<p>Action for Negligence. Judgment founded upon sufficient evidence and under proper instructions, affirmed.</p>

<p>Action for Negligence. Judgment founded upon sufficient evidence and under proper instructions, affirmed.</p>