Volume 43 — Colorado Reports

<p>1. Negligence —- Personal Injuries — Dangerous Premises — Liability.</p> <p>Plaintiff was injured by a trick stairway used in connection with, a saloon leased and conducted by H., who held a federal license, the city license being held by a brewing company, which held a chattel mortgage on the fixtures with a condition attached that H. should purchase all his beer from the company, but with no other interest in or control oyer the business or premises. Held, that the brewing company was not liable for such injuries. — P. 3.</p> <p>2. Torts — Joint Liability — Requisites. •</p> <p>In order to render persons jointly liable for a tort, it must appear in some way that it was the result of their joint action, or joint neglect of duty. — P. 4.</p> <p>3. Same.</p> <p>The fact that two persons may be violating the law in reference to a license for a saloon conducted, exclusively by one of them, does not create a civil liability against them jointly, except for the results naturally following such violation.' — P. 4.</p>

<p>1. Appellate Practice — Evidence—Harmless Error.</p> <p>In an action for commissions for services rendered in assisting defendant to obtain title to mining property, where it appeared that the sale of the property could not be consummated without a surrender of a lease thereon, and the owners of the lease had agreed with plaintiff to surrender it if he obtained a-satisfactory option, one of the owners of the lease was asked as a witness whether he recollected that at a certain date he had practically abandoned hope of carrying out the sale, and if defendant had not agreed or offered to surrender to him the agreement to surrender the lease, to which he answered that he did not recollect that, but knew that they had abandoned the idea of carrying out that contract, and never did carry it out. Held, that, although the question might have been improper, it being answered in the negative, except as to a matter which could not possibly injure plaintiff, there was no prejudicial error. —P. 9. '</p> <p>2. Evidence — Admissibility—Conversations in Entirety.</p> <p>Where evidence of a conversation is admissible at all, the entire conversation is admissible. — P. 10.</p> <p>3. Appellate Practice — Evidence—Harmless Error — Exclusion of Question.</p> <p>In an action for commissions by a person engaged to assist defendant in securing title to certain mining property with a view to effecting a consolidation of it with other property, it appeared that, after plaintiff and defendant had been unsuccessful in effecting a purchase, another person had secured an option upon the property, and it had been subsequently transferred to a new corporation, in which later defendant had invested; but there was no proof that defendant had taken any part in procuring the option or organizing such company, or that he had, for the purpose of avoiding his contract with plaintiff, procured another person to secure title to the property. Held, that the exclusion of the question, asked defendant as a witness, “It was never understood that the legal title to their property was necessary to be taken in your name by yourself or plaintiff, was it?” was not prejudicial to plaintiff, since under the evidence what the contract provided for was immaterial. — P! 11.</p> <p>4. Brokers — Action for Compensation — Evidence.</p> <p>In an action for commissions by a person engaged to assist in securing title to certain mining properties, defendant’s answer averred that he had taken no part in a transaction involving their subsequent purchase by another person, and plaintiff had testified that he would not be- entitled to commissions had the person obtaining the purchase dealt with persons other than defendant. Held, that the evidence of the person who purchased the claims' to the effect that defendant took no part in the transaction was admissible. — P. 11.</p> <p>5. Practice in Civil Actions — Instructions—Refusal of Requests —Matters Embraced in Others Given.</p> <p>It is not error to refuse a requested instruction where the principles of law embraced therein are embodied in another instruction therein given. — P. 12.</p> <p>6. Practice in Civil Actions — Instructions.</p> <p>In an action for commissions for services rendered in obtaining title to property, where the complaint alleged that plaintiff agreed to assist defendant in securing title to the property and that defendant, by reason of such assistance, did secure the title, plaintiff cannot complain of an instruction basing his right to recover upon proof of such allegation. — P. 13.</p> <p>7. Brokers — Commissions—Actions—Instructions.</p> <p>In an action for commissions for services rendered in assisting to obtain title to mining claims, the court instructed that, if plaintiff and defendant were unable to agree with the owners in the purchase of the claims, and other persons, not co-operating with defendant, thereafter initiated negotiations with the owners for such purchase, and put the claims into a consolidated company, plaintiff could not recover even though defendant on request contributed to the purchase. Held, that such instruction is not subject to the objection that, in effect, it states that plaintiff, even if he had complied fully with his contract, cannot recover if he and defendant were unable to agree with the owners of the claims as to their purchase. — P. 14.</p> <p>8. Practice in Civil Actions — Instructions — Considered as an-Entirety.</p> <p>In construing an instruction, it cannot be divided into incomplete phrases, but must be taken as an entirety. — P. 14.</p> <p>9. Brokers — Commissions—Action—Instructions.</p> <p>In an action for commissions under a contract by which plaintiff was employed to assist defendant in acquiring the title to mining property for consolidation with other property, the court instructed that plaintiff could not recover if he and defendant were unable to effect a sale with the owners, and other persons not co-operating with defendant subsequently did so, and effected a consolidation, even though defendant, by request, contributed to the purchase. Held, that such instruction was not inconsistent with the terms of the contract, since the thing contracted to be done was the securing of the title to the property and the making of the consolidation by plaintiff and not by some person not connected or associated with him. — P. 14.</p> <p>10. Brokers — Right to Commissions.</p> <p>If plaintiff contracted to assist defendant in purchasing mining claims and consolidating them with other property, and the attempt was unsuccessful and the project was abandoned, defendant is not thereby precluded from afterwards negotiating with others to carry out the same enterprise; and, if the consolidation is accomplished in connection with other persons wholly independent of plaintiff’s efforts, he cannot recover for his unsuccessful services. — P. 16.</p>

Appeal from the District Court of the City and County of Denver. Hon. Samuel L. Carpenter, Judge. Action by B. D. Prentice against James Steck and other directors of a corporation. From a judgment for plaintiff, defendant Steck appeals. .

<p> Appeal from the District Court of Garfield County. </p> <p> Hon. John T. Shumate, Judge. </p> <p>Action by Joseph. M. Dyer, Otto Hanawald, Jefferson Corley, Mrs. Nettie Schultz, William Kissee, Otis Corley, J. B. Fry, George Wrightman, J. B. Fuller and Jacob H. Evans, appellees, against Edgar A. Conley, Phil Younger, George Douglas, B. Staton, Charles Staton and Ira Cissna, appellants-. From a judgment for plaintiffs, defendants, other than defendant Curry, appeal.</p>

<p> Error to the District Cou-rt of Larimer County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by The Cache la Poudre Irrigating Ditch Company and The Larimer and Weld Reservoir Company against C. C. Hawley, as water commissioner of water district No. 3, James J. Armstrong, as superintendent of irrigation district No. 1, and Addison J. McCune, as state engineer. The New Cache la Poudre Irrigating Company, O. Shang, as executor, Frank Mechand Willcox, Edgar Barkley, Edson Warren, Franklin P. Riddle and J. C. Riddle, intervened. From a judgment adverse to plaintiffs, they bring error.</p>

Hon. Robert E. Lewis, Judge. Action by tbe board of county commissioners of Teller county against Albert S. Frost, as judge of the county court. From a judgment for plaintiff, defendant appeals.

Hon. F. T. Johnson, Judge. Action by E. C. Purcell against John Parse, and upon death of plaintiff, his administratrix, Bertha F. Purcell, was substituted. - From a judgment for plaintiff, defendant appeals.

Ron. Robert Kerr, Judge. Action on a promissory note by W. D. Ascongli against W. A. Edmonston and one Dustin. From a judgment against Edmonston as a comaker of the note, he brings error.

Error to the District Court of the City and County' of Denver. Hon. P. L. Palmer, Judge. Action by John Lintz against Tbe Denver City Tramway Company. From a judgment for defendant on a directed verdict, plaintiff brings error.

Hon. Frank W. Owers, Judge. Action -by Hele A. Beck against Martba- Wellington and William Wellington, to restrain them from interfering with her nse of the waters of a creek. From a judgment for plaintiff, defendants bring error.

F. T. Johnson, Judge. Action by Hillian Frith against Charles H. Howe for damages for violation of the covenants of a lease. From a judgment for plaintiff, defendant appeals.

Mon. M. V. Johnson, Judge. Proceedings for the allowance of the claim of Theodore Koernig against the estate of Anna Bergmann. Prom a judgment for claimant’ allowing the claim, Theodore Bergmann, executor, appeals.

Hon. John I. Mullins, Judge. Mandamus by Frieda Schradsky against the board of county commissioners of Lake County to compel it to levy a tax sufficient to pay her judgment against the county. From a judgment for relator, defendant brings error.

Hon. F. T. Johnson, Judge. Action by Arthur K. Smith and Alice M. Smith against J. R. Ward, Hattie N. Ward and The J. R. Ward Auction Company, a corporation, in which the Central Savings Bank intervened. From a judgment for plaintiffs, intervenor appeals.

<p> Appeal from the District Court of El Paso County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by T. A. Gibson against The Hill Brick and Tile Company, a corporation. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Practice in Criminal Cases — informations and Indictments— Election Between Acts — Motion—Time.</p> <p>In an. action for assault with intent to kill, there was evidence of two separate and distinct assaults on the same day, hut at different places, the information charging only a single offense and specifying the place only as within the county, and the defense moved, before the commencement of trial, to compel the state to elect for which of the two assaults they should be tried. Held, that such motion was premature, and not available until the evidence had developed that the prosecution was attempting to establish a state of facts tending to prove two substantive offenses of the character charged. — P. 109.</p> <p>2. Practice in Criminal Cases — Evidence—Other Offenses. Although the general rule is, that evidence which shows or</p> <p>tends to show that accused has committed a crime wholly independent of the offense for which he is on trial, still it is proper to.introduce evidence to prove defendant’s intent or motive in committing the crime charged, although such evidence may show the commission of similar and independent crimes by him; or, in effect, where the facts and circumstances offered in evidence amount to proof of a crime other than that charged, and there is ground to believe that the crime charged grew out of it, or was caused by it, such facts and circumstances may be admitted to show the quo animo of the accused. — P. 112.</p> <p>3. Same.</p> <p>Defendants, W. and K., went to the sheriff’s office and demanded the return of certain revolvers, to which the sheriff agreed, and left the office, whereupon .the sheriff noticed that K. had a revolver upon his person, which he took from him, and placed him under arrest for carrying concealed weapons. Later W., ascertaining that K. had been arrested, informed the sheriff that K. had another revolver on his person, but when the sheriff demanded this, both drew their revolvers and threatened to kill the sheriff, who then allowed them to make their escape, whereupon a posse was organized, and within less than an hour overtook defendants and ordered them to halt, when the latter opened fire on them. Held, in a prosecution for assault with intent to murder, arising out of the latter event, that evidence of the former assault, though not part of the res gestae, was admissible to show motive and intent. — P. 113.</p> <p>4. Appellate Practice — Practice in Criminal Cases — Objections Below.</p> <p>In a prosecution for assault with intent to murder, the evidence tended to show the commission of two offenses, and defendants moved to require the district attorney to elect on which he would rely for a conviction, but made no motion that he be required to elect the assault first proved by him. Held, that defendants cannot urge on appeal that the state elected to rely on the first assault for a conviction. — P. 115.</p> <p>5. Homicide — Assault with Intent to Murder — Defense—Weapon Used.</p> <p>Where defendants, at the time they shot at a sheriff’s, posse, used revolvers which would carry the distance with fatal result, it is no objection to a conviction for assault with intent to murder the sheriff that the revolvers at such distance would not shoot accurately. — P. 116.</p> <p>6. Practice in Criminal Cases — Instructions Construed Together.</p> <p>In a prosecution for assault with intent to murder, an instruction is not erroneous because omitting the element of defendant’s ability to carry their intention into effect at the time, where such element was specifically called to the jury’s attention by a subsequent instruction, as the instructions must be considered as a whole. — P. 117.</p> <p>7. Practice in Criminal Cases — Venue.</p> <p>It is not indispensable that the venue be proved in a criminal case by positive testimony, but it may be inferred from the proof of other facts. — P. 117.</p>

Eon. Charles C. Eolbrooh, Judge. C. F. Morse was convicted of selling certain manufactured articles without having procured a license, and brings error.

Hon. F. T. Johnson, Judge. Action by Mamie Hannegan and Frank Hannegan, minors, by their guardian, Hugh Hannegan, against The Denver & Santa Fe Railway Company and The Atchison, Topeka & Sánta Fe Railroad Company. From a judgment for plaintiffs, defendants appeal.

<p>1. Practice in Civil Actions — Brokers — Compensation — Complaint — Evidence.</p> <p>In an action by a broker for commissions, a complaint which alleges that plaintiff was employed to assist in making a sale, that defendants promised to pay plaintiff a half of the commissions received for his services, that a sale was made through valuable services rendered by plaintiff, and that defendant received a specified sum for commissions — is supported by evidence that defendants agreed to “divide” the commissions with plaintiff. — P. 134.</p> <p>2. Same — Words and Phrases — “Divide."</p> <p>The word “divide,” when used by and between two contracting parties and unqualified by other words, means a severance or partition into two equal parts. — P. 134.</p> <p>3. Same — Appellate Practice — Jury—Verdict—Manner of Reaching.</p> <p>In an action for one-half of commissions received by defendants as brokers for malting a sale of real estate, the action of the jury in first deducting the expenses incurred by defendants before dividing the remainder between the parties, was not prejudicial to defendants. — P. 134.</p>

Appeal from the District Court of the City and County of Denver. ' Hon. Samuel L. Carpenter, Judge. Action to quiet title by Lydia M. Knott against W. C. Mitcbell. From a judgment for plaintiff, de- fendant appeals.

Hon. Samuel L. Carpenter, Judge. Action by Horace A. Gray against P. W. Wasem, a member of a partnership, on a claim against the firm. From a judgment for plaintiff, defendant appeals.

Error to the District Court of Fremont County. Eon. J. W. Sheaf or, Judge. Action by Frank Manning, Frank McFarlane and Engene A. Bradbnry against tbe city of Canon City, Thomas B. Conlter and David J. Houston. Prom a judgment for plaintiffs, defendants bring error.

Hon. F. T. Johnson, Judge. Action by Tbe Capitol National Bank, a corporation, against Orel Holmes and Mary Wrigbt. From a judgment for defendant Holmes on Ms cross-complaint, subrogating bim to certain rights under a mortgage, plaintiff appeals.

<p>Insurance — Agents—Subagents—Commissions—Evidence.</p> <p>In an action by a subagent to recover commissions from an insurance company, evidence reviewed and held insufficient to show a contract of employment by tbe company. — P. 163.</p>

<p> Appeal from the District Court of Montrose County. Hon. Theron Stevens, Judge. </p> <p>Action by Jennie Digges against Eosa B. Lines. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. ■ Appellate Practice — Verdict Based on Conflicting Evidence.</p> <p>Plaintiff and one witness testified to the making of a certain- contract, while four witnesses employed by defendant testified to the contrary. Held, that a verdict for plaintiff based on such evidence will not be disturbed on appeal in the absence of a showing that the jurors misunderstood the evidence or misconceived its force, or that they were prompted by some improper motive. — P. 176.</p> <p>2. Appellate Practice — Variance—Harmless Error.</p> <p>Mills’ Ann. Code, § 78, provides that, in every stage of an action, any error or defect in the pleadings or proceedings not affecting the substantial rights of the parties shall be disregarded, and that no reversal shall be had therefor. Held, that, in an action against a carrier for failure to safely deliver goods, even if the court treated the complaint as charging defendant as a common carrier and the proof showed a private carrier, no reversible error exists, since the liability of the carrier to safely deliver the goods is the same, whether engaged to do so under the implied liability of a common carrier, or the express liability of a private carrier. — P. 178. ,.</p>

Hon. Bice W. Means, Judge. Action by the Knight-Campbell Music Company against William H. Buck. From a judgment of the county court for defendant on appeal from, a, justice court, plaintiff appeals.

<p> Appeal from the District Court of Ban Miguel County. </p> <p> lion. Theron Stevens, Judge. </p> <p>Action by Benjamin L. Gearing against The Erie Mining and Milling Company. Prom a judgment for plaintiff, defendant appeals.</p>

Appeal from, the District Court of Delta County. Hon. Theron Stevens, Judge. Action by Martlia J. Petterson against M. H. Payne, as water commissioner in District No. 40, and The Alfalfa Ditch Company, a corporation. Prom a judgment for defendants, plaintiff appeals.

<p>1. Contracts' — Execution — Determination by Third 'Person — Conclusiveness.</p> <p>Where parties to a contract designate one who is authorized to determine questions relating td its execution, and stipulate that his determination shall be final and conclusive, both parties are conclusively bound by his determination of such matters except in case of fraud or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment. — P. 192.</p> <p>2. Same.</p> <p>A contract required a person to plant and cultivate a crop of peas, and collect and deliver the same to a packing company, the latter agreeing to receive and pay a specified price for the peas delivered in proper condition for canning; and the contract further provided that certain employees of the packing company should be the sole judge of the proper condition of the crop for canning. Held, that the judgment of such designated persons is conclusive in the absence of fraud or gross mistake implying bad faith. — P. 193.</p> <p>3. Same — Pleading.</p> <p>A party to a contract providing that the determination of a third person as to the performance of the contract shall be conclusive, who desires to avoid the determination of the third person, must allege facts presenting fraud or implying bad faith or a failure to exercise an honest judgment by such third person. — P. 194.</p> <p>4. Same — Construction.</p> <p>A contract provided that plaintiff should plant and cultivate a crop of peas, and collect and deliver the same to a packing company; that the peas should be suitable for canning purposes; that certain employees of the company shpuld be the sole judge of the proper condition of the crop; that plaintiff should submit samples of crops to the canning company a few days before the peas were ready to harvest; and that the company should advise what day the delivery should be made. Held, .that the company, upon notification by plaintiff that the crop was about ready to he harvested, must exercise due diligence in examining the crop to determine its condition with respect to fitness for canning, and plaintiff is entitled to recover if the company failed .to exercise due care and prevented a delivery at a time when the crop was in proper condition. — P. 197.</p> <p>5. Contracts — Performance Prevented by Other Party.</p> <p>Where the performance of an obligation is prevented by one of the parties to a contract, the party thus prevented from discharging his part of such obligation is to be treated as though he had performed it. — P. 198.</p> <p>• 6. Appellate Practice — Cause Submitted — Grounds for Reversal • on One Erroneous and One Correct Theory.</p> <p>Where a cause was submitted to the jury on two theories, one erroneous and one correct, and the court, on appeal, cannot determine which theory the jury followed, the judgment must be reversed. — P. 198.</p>

Error to the District Court of Mesa County, lion. Sprigg Shackleford, Judge: James G-. Lace was convicted of obtaining’ money by means of the confidence game, and brings error.

<p> Appeal from the District Court of Garfield County. ■ Hon. John T. Shumate, Judge. </p> <p>Action by H. G. Hammerich against Timm Sievers. From a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. F. T. Johnson, Judge. </p> <p>Action by A. L. Burdette against D. C. Wyatt. From a judgment for plaintiff, defendant appeals.</p>

<p> Error to the County Court of Summit County. </p> <p> Hon. J. W. Swisher, Judge. </p> <p>Action by Avery B. Tubbs against James IC. Scott. From a judgment for petitioner, respondent brings error..</p>

Eon. B. M. Malone, Judge. Certiorari by William C. Slater to the fire and police board of the city and county of Denver, Frank Adams, Earl Hewitt and D. A. Barton, to review the grant of a liquor license to William Coors. From a judgment of the district court sustaining the license, petitioner brings error.

<p> Error to the County Court of Pitkin County. </p> <p> Hon. Henry C. Hyers, Judge. </p> <p>Action by L. N. McKenzie against Rose Tyler. Prom a judgment for plaintiff, defendant brings error.</p>

<p> Appeal from the District Court of Boulder County. </p> <p>Hon. Christian A. Bennett, Judge.</p> <p>Action by Emma Watt against the town of Lyons. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Husband and Wife — Criminal .Conversation — Right of Action —Evidence.</p> <p>In an action for criminal conversation, proof of the alienation of the affections of plaintiff’s wife is admissible as affecting the aggravation of the offense and the amount of damages recoverable, but it is not necessary to the right of action, since the essential injury to the husband consisted in the defilement of the marriage bed. — P. 244.</p> <p>2. Same — Damages—Suffering and Mental Anguish.</p> <p>In an action for criminal conversation, the mental anguish suffered by plaintiff from the wound given to his feelings, his affections, and his pride, by 'the act of defendant, is the real injury, and ought to be so considered by the jury in awarding damages; and .plaintiff may testify as to his humiliation and the distress of body and mind and mental anguish which he suffered in consequence of the acts of defendant when brought to his knowledge. — P. 245.</p> <p>3. Husband and Wife — Criminal Conversation — Proof of Marriage — N ecessity.</p> <p>In an action for criminal conversation, there must be proof of actual marriage between plaintiff and the alleged wife, for proof of their cohabitation and their holding themselves out to the world as husband and wife is not sufficient; but proof of an actual marriage is not limited to the official record thereof. — P. 245.</p> <p>4. Same — Evidence—Sufficiency.</p> <p>In an action for criminal conversation, testimony of plaintiff and his alleged wife that they were married in another state about 25 years before by a clergyman authorized under the law of that state to solemnize marriages, that since their marriage they had constantly lived together as husband and wife, and that they had a son 22 years of age, was sufficient proof of their marriage, without proving such fact by the marriage certificate provided for by the laws of such state. — P. 247.</p>

Court of Larimer County. Eon. Christian A. Bennett, Judge. Action by Marie La Fitte against Gieorge Salisbury, Henry Rups and Susan Salisbury, to have’a judgment of revival declared void, etc. From a judgment for defendants, plaintiff brings error.

Appeal from the District Court of the City and County of Denver. Hon. Peter L. Palmer, Judge. Action by John S. Hale against Alfred C. Phelps and Clara A. Phelps, his wife. From a judgment for plaintiff, defendants appeal.

<p> Error to the District Court of the City and County of Denver. </p> <p> Hon. Harry C. Biddle, Judge. </p> <p>George B. Irving was convicted of rape, and he brings error.</p>

<p> Appeal from the District Court of Rio Grande County. </p> <p> Hon. Chas. C. Holbrook, Judge. </p> <p>Action by Richard B. Powell and Anna H. Powell against Howard H. Winchell. From a judgment for plaintiffs, defendant appeals.</p>

<p> Appeal from the District Court of Delta County. </p> <p>Hon. Theron Stevens, Judge. -</p> <p>Action by Elsie Sargent, H. E. Garren, and L. M. Stevens against Thomas Woods. Prom a judgment for plaintiffs, defendant appeals.</p>

<p> Appeal from the District Court of Teller County. Hon. William P. Seeds, Judge. </p> <p>Action by Lafe Pettit against George W. Mayliew and W. B. Pullen. Prom' a decree dismissing the complaint, plaintiff appeals. •</p>

Eon. Milton R. Welch, Judge. Action by Weldon Hammond, individually and as executor of C. M. Hammond, against Fred D. Curtis. From a judgment of the county court for plaintiff on appeal from a judgment for the same party in the justice of the peace court, defendant brings error.

<p> Appeal from the District Court of Weld County. </p> <p> Hon. Christian A. Benn,ettr Judge. </p> <p>Action by Detrick E. Bingel and Albert Hill, copartners as Bingel & Hill, against William G-. Brown. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. justices of the Peace — Replevin—Bond—Liability of Sureties —Denial—Estoppel.</p> <p>Where the value of the property in replevin in a justice of the peace court is alleged by plaintiff to be less than $300, its maximum jurisdiction, and upon appeal it is determined that such value is greater than $300, and the case is dismissed, the sureties upon the bond are estopped from denying the jurisdiction of the justice court. — P. 288.</p> <p>2. Same.</p> <p>Plaintiff, as sheriff, by virtue of an execution, levied on certain cattle, which were replevined by a writ issuing out of a justice court, the affiant alleging that the cattle were of the value of $250; but on appeal by plaintiff to the county court, the value was found to he in excess of the lower court’s jurisdiction, whereupon the case was dismissed. Held, that, in an action on the replevin bond, defendants were estopped -to plead that the justice of the peace had no jurisdiction of the subject-matter, for the reason that the amount was in excess thereof, because they had originally alleged in the justice court that the property was Within its jurisdiction. — P. 288.</p> <p>3. Practice in Civil Actions — Replevin Bond — Evidence—Competency.</p> <p>In an action on a replevin bond, defendants tendered testimony that they were the real owners of the cattle replevined, and that the original judgment upon which the execution was issued, under which the defendant in replevin took the cattle, was obtained without service. Held, that such testimony was immaterial, and properly rejected. — P. 288.</p>

<p> Appeal from the District Court of Pueblo County. </p> <p> Hon. John H. Voorhees, Judge. </p> <p>Action by Omie Brown against tbe Knights of the Protected Ark. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Cities and Towns — Intoxicating Liquors — Storing for Sale— Ordinances — Validity.</p> <p>An ordinance against storing intoxicating liquors for the purpose of selling is not void as ultra vires because it does not limit, or attempt to limit, the sale of liquors to the territorial limits of the city, since, in the absence of language to the contrary, it will be presumed the council only intended it to operate within its jurisdiction. — P. 300.</p> <p>2. Appellate Practice — Abstract — Matters Not Included — How T reated.</p> <p>Where the ordinance is not abstracted on appeal from a prosecution for violation of an ordinance against disorderly houses, error in the admission of evidence as to reputation of the house and of persons frequenting it cannot be reviewed, since its competency cannot be determined without a knowledge of the provisions of the ordinance. — P. 300.</p>

<p>1. Appellate Practice — Judgment Based on Conflicting Evidence Not Legally Sufficient — Effect.</p> <p>There must he a substantial conflict in the evidence, and it must he legally sufficient to sustain the finding of the court, in order that a judgment may not he disturbed on appeal; and where it does not warrant the finding, the judgment must he reversed. — P. 305.</p> <p>2. Mortgages — Foreclosure—Evidence—Sufficiency—Fraud.</p> <p>Evidence in an action to foreclose a real estate mortgage reviewed, and held insufficient to support a finding of fraud in procuring the mortgage and note secured. — P. 306.</p> <p>3. Same.</p> <p>Notes and mortgages duly executed and acknowledged ought not to he set aside for fraud, except on the most clear and convincing proof of their fraudulent character. — P. 306.</p>

<p>Conveyances — Covenants—Warranty—Breach.</p> <p>A deed described the land conveyed, as “subject, however, to one certain trust deed incumbrance for the same, etc., which said incumbrance has been assumed by” a third person, and contained a general covenant of warranty against all incumbrances except for taxes for a designated year, which the grantee agreed to pay. Held, that the covenant of warranty was not a covenant that the third person would pay the trust deed at maturity, but applied only to the estate conveyed, which was an equity of redemption in the property described, since the statement that the incumbrance had been assumed by the third person is, at most, an added identification of the incumbrance, and did not guarantee that such third person would pay the incumbrance when due. — P. 310. .</p>

<p>1. Real Property — Judgment—Lien—Issue of Execution.</p> <p>In Colorado, save in tlie federal court, a judgment does not of itself constitute a lien upon realty of a judgment debtor even in tbe county where it is rendered, nor does the issue of execution create such a lien. — P. 312.</p> <p>2. Creditors’ Suit — Conditions Precedent.</p> <p>A mere general judgment creditor cannot maintain a creditor’s suit to reach real property appearing in the name of the judgment debtor’s wife subject to a resulting-trust in his favor, without first obtaining a specific lien upon the judgment debtor’s interest in the real estate, either by levy of an execution thereon if the realty can be identified, or by filing a transcript of his judgment in the office of the clerk and recorder of the county where the property is situate, thus securing a statutory lien binding the debtor’s interest in realty for six years from the date of judgment, or by attachment of the realty before judgment, and omission to emerge the attachment lien through levy of execution or filing of the judgment transcript; and this is equally true where the debtor’s interest in the property constitutes a constructive trust, or where it is otherwise of such a nature that execution or other process at law is insufficient.— P. 313.</p>

Appeal from the District Court of Parlo County. Hon. M. 8. Bailey, Judge. Action by Morris Mecklenburg against A. J. King, H. S. Wallace and W. J. Wallace, as copartners, doing business as King & Wallace. From a judgment for plaintiff, defendants appeal.

<p> Error to the District Court of Larimer County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by Howard Rnssell and Walter B. Sheppard, copartners as Russéll & Sheppard, against The Courier Printing & Publishing Company. Prom a judgment for defendant, plaintiffs bring error.</p>

Ron. Charles McCall, Judge. Action by Fred Blush and Harry H. Blush, co-partners under the name of Klondike Ice Company, against Charles Wallbrecht and Mata Wallbrecht. From a judgment of the county court for plaintiffs, on appeal from a like judgment in the justice of the peace court, defendants appeal.

Hon. George W. Allen, Judge. Mandamus by tbe people of tbe state of Colorado, on tbe relation of William H. Bryant, an election commissioner, against Henry Youngs and others, to compel tbe certification of election judges appointed by relator. Prom a judgment dismissing tbe action and refusing tbe writ, relator brings error.

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. John I. Mullins, Judge. </p> <p>Action, by E. W. Rollins against The Denver Club, a corporation. From a judgment for defendant, plaintiff appeals.</p>

Ron. Owen E. Le Fevre, Judge. Action by Jane. Fabey against Tbomas Fahey and J. F. Gtirardot, and from a decree in favor of plaintiff, William Fahey, Mary Girardot (substituted as parties on- the death of defendant Thomas Fahey) and J. F. Girardot, bring error.

Ron. Frank T. Johnson, Judge. Action by the Illinois Sewing Machine Company against Mark Harrison. From an order sustaining a demurrer to the complaint, and dismissing the action, plaintiff appeals.

<p>1. Pleading — Sworn Complaint — Effect of Averments.</p> <p>Admissions and averments made and sworn to in a complaint are binding upon plaintiff through ail the subsequent stages of the case; and, where an original verified complaint and amendment thereto alleged that, during certain months, defendant was a corporation, plaintiff may not subsequently deny the corporate capacity of defendant, and show that it was a partnership; and hence a finding by the trial court that defendants were partners was improper. — P. 374.</p> <p>2. Mines and Mining — Mining Partnerships — Creation—Corporations — Advancements by Stockholders.</p> <p>Where defendants were members and stockholders of a mining corporation, and, after the mine had been operated some time and continued unproductive and the treasury stock had been sold and its funds exhausted, defendants, without any formal action by the company, but by tacit agreement among themselves, put up each month their pro rata share of the monthly expenses incurred in the operation of the property, with the understanding between themselves and with the company that the sums so advanced should be repaid out of the first earnings from, the mine, they (lid not thereby become copartners in prosecuting the work, as such contributions were merely voluntary loans or advancements to the corporation, and were expended for services rendered and supplies furnished to the corporation. —P. 375.</p> <p>3. Pleading — Amended Complaint — New Cause of Action.</p> <p>Where an action was originally instituted against a corporation to recover a debt due from it in its corporate capacity, an amended'complaint charging defendants as individuals or co-partners constitutes a new cause of action, and cannot be allowed by way of amendment. — P. 375. ></p> <p>4. Practice in Civil Actions — Pleading — Variance—Allegations and Proof — Corporations.</p> <p>Proof must be within and support the allegations of the pleadings and, hence, where the complaint stated a cause of action against a corporation for a corporate debt, in order to establish the liability of the stockholders, it may not be shown that they agreed to pay such indebtedness sued for. — P. 377.</p>

Appeal from the District Court of the City and County of Denver. Hon. P. L. Palmer, Judge. Action by Geo. E. Cartwright, Hans O. Cartwright and Janies E. Cartwright, doing business as The Cartwright Investment Company, and Cartwright Brothers against Isaac W. Buffin. From a judgment for defendant, plaintiffs appeal.

<p> Appeal from the District Court of Teller County. Hon. Robert E. Leíais-, Judge. </p> <p>Action by Mary Peterson -against W. O. Burnside. From a judgment for plaintiff, defendant appeals.</p>

Hon. James L. Russell, Judge. Action in tbe nature of a creditor’s bill by Curtis, Jones & Company, Z. T. Lindsey and Cbris Heer against tbe Smelter National Bank and Tbe F. L. Cbase Shoe Company. From a judgment for defendants, plaintiffs appeal.

Error to the District Court of the City and County of Denver. Hon. John I. Mullins, Judge. Action by the First National Bank of Denver,, Thomas Keely and George E. Ross-Lewin against Eliza M. Du Bois, impleaded with Louis B. Du Bois. From a judgment for plaintiffs, defendant, Eliza M. Du Bois, brings error.

Hon. Theron Stevens, Judge. Adverse suit by A. L. Moorhead, H. M. Hogg, and C. L. Watson against The Erie Mining and Milling Company to establish their right to certain mining property. From a judgment for defendant, plaintiffs appeal.

Eon. Rice W. Means, Judge. ■Action by Charles Newman against The Denver Engineering Works Company. Prom a judgment for plaintiff in the county court on appeal from a similar judgment in the justice of the peace; court, defendant appeals.

<p> Error'to the County Court of the City and County of Denver. </p> <p> Hon. H. V. Johnson, Judge. </p> <p>Action by David G. Taylor against Con. J. Kellelier. From a judgment of nonsuit, plaintiff brings error.</p>

Ron. Christian A. Bennett, Judge. Action by tbe board of county commissioners of the county, of Larimer against Phillip H. Boothroyd. Prom a decree for plaintiff, defendant appeals.

<p>1. Practice in Criminal Cases — Former Jeopardy — Plea—Demurrer.</p> <p>Where a plea of former jeopardy is demurred to, in determining the demurrer, all statements in the plea must be accepted as true. — P. 440.</p> <p>2. Practice in Criminal Cases — Former Jeopardy — Plea — Trial by Jury.</p> <p>The court cannot overrule a plea of former jeopardy because, from facts within its own knowledge, the averments are untrue, but the issues must be submitted to a jury. — P. 440.</p> <p>3. Practice in Criminal Cases — Former Jeopardy — Plea—Question of Fact.</p> <p>A plea of former jeopardy, alleging that, on a former trial of defendant on the same information, the jury was arbitrarily discharged without defendant’s consent before the end of the term-without any imperious or actual necessity or warrant of law existing therefor, and that there was no judgment appearing in the records of the court in relation to the discharge of the jury except an unauthorized minute voluntarily and without direction of the court made by the deputy clerk, is not subject to demurrer, but raises an issue of fact requiring a trial. — P. 440.</p> <p>4. Practice in Criminal Cases — Orders—Entry by Clerk — Validity.</p> <p>A minute entry by a deputy clerk on the record of a criminal prosecution, without an order of court, that the jury, being unable to agree, were discharged, and that the trial was continued to the next term, is unauthorized and ineffective for any purpose. — P. 440.</p>

Appeal from the County Coiirt of the City and County of Denver. Hon. Henry V. Johnson, Judge. Action by Thomas P. Duffy, doing business as The Duffy Van and Storage Company, against The Star Loan Company. Prom a judgment for plaintiff, defendant appeals.

<p>1. Religious Societies — Incorporation—Effect.</p> <p>A religious society which, incorporates in the manner prescribed by Mills’ Ann. Stats., § 641 et seq., providing for the incorporation of religious societies, becomes thereby a civil, as distinguished from an ecclesiastical, corporation, and is subject to the principles of the common law applicable to corporations under the general incorporation laws; and the trustees, wardens, or other officers, are its managing officers in the same sense that the directors and officers of a business corporation are its officers, and the members of the society occupy the same relation to the incorporated body as the. shareholders of a business corporation occupy to it. — P. 447.</p> <p>2. Corporations — Stockholders — Management — Judicial Interference.</p> <p>The courts will not, as a general rule, at the suit of a stockholder or any number of stockholders, .interfere with the internal affairs and management of a corporation. — P. 448.</p> <p>3. Same — When Judicial Aid Granted — Complaint—Sufficiency.</p> <p>To entitle a stockholder to the aid of the courts, it must appear from the complaint that he has exhausted all the means within his reach to obtain redress, within the corporation itself, of the grievances of which he. complains; and it must appear that he has applied to the managing body of the corporation to institute an appropriate action, and, on the failure of that body to act, has made an honest effort to obtain relief through the stockholders; or a showing must be made that such efforts would be unavailing, and, in the absence of such a showing, a general demurrer to the complaint is properly sustained. — P. 448.</p> <p>4. Religious Societies — Incorporated Society — Suits by Members —Complaint—Sufficiency. c</p> <p>A complaint, in an action by members of an incorporated religious society, to restrain defendant from entering on the duties as pastor of a church, pursuant to a call alleged to have been illegally procured by defendant, which is silent with respect to the efforts made by the members to obtain relief within the corporation itself, is fatally defective on general demurrer.— P. 449.</p>

<p>1. Pleading — Complaint—Demurrer—When Improper.</p> <p>Where a complaint alleged, that the word “trustee,” appearing in a lease, and signature of defendant thereto, was merely descriptio personae, it could not he demurred to on the ground. that defendant was trustee for a certain partnership consisting of himself and another, since the objection raised did not appear upon, the face of the complaint. — P. 451.</p> <p>2. Pleading — Replication—Denial on Information and Belief.</p> <p>Under §56, Mills’ Ann. Code, providing that,, in denying any allegation in the complaint not presumptively within the knowledge of defendant, it shall he sufficient to put such allegation in issue for defendant to state, as to such allegation, that he has not and cannot obtain sufficient knowledge or information upon which to base a belief,' a denial “on information and belief” by plaintiff in his replication, of an allegation in the answer, is not sufficient to put such allegation in issue. — P. 452.</p> <p>3. Partnership — Firm Debts — Action Against One Partner — Evidence — Admissibility.</p> <p>In an action for rent against a person who signed a lease as trustee, where defendant alleges in his answer that, while he executed the lease alone, he acted as representative of his firm and not upon his own behalf, and such fact was known to the lessor, evidence is admissible to show that the rent due was a partnership debt and not a personal one. — P. 453.</p> <p>4. Same — Parties—Joinder.</p> <p>Firm debts are joint obligations, and not joint and several, and action therefor must be brought against the firm, and not against an individual member; and hence, in an action against an individual for rent under a lease signed by him, where it appeared that the lease was made to defendant’s firm and that defendant was not acting in his individual capacity, the partner should be made a party to the suit. — P. 454.</p> <p>5. Landlord and Tenant — Leases—Rent—Liability After Expiration of Term — Effect of Assignment of Lease.</p> <p>Lessees are liable for the rent of leased premises after the expiration of the term so long as they occupy them, and it seems that this is true as to their subtenants; hut if the lease is assigned with the knowledge and acquiescence of the lessor, the liability of the original lessee terminates with the term provided for by the lease. — P. 455.</p>

Eon. P. L. Palmer, Judge. Proceeding by George H. Jerome for tbe allowance of a claim, against tbe estate of John L. Jerome, deceased. Prom a judgment allowing tbe claim, John H. Denison, as administrator, witb tbe will annexed, appeals.

Error to the District Court of Otero Cownty. Hon. J. E. Riser, Judge. Action by The Colorado Farm and Live Stock . Company against C. A. Beerbohm, as county treasurer of Otero county. From a judgment for defendant, plaintiff brings error.

Hon. E. E. Armour, Judge. Action by I. Rude against Morris Levy, for specific performance of an option to purchase land. From a judgment- for defendant, plaintiff appeals.

<p> Appeal from the District Court of Larimer County. </p> <p> Hon. James E. Garrigues, Judge. </p> <p>Action by Ebenezer R. Davies against Harford Loucks. From a judgment for plaintiff, defendant appeals.</p>

<p>Damages — .Death fay Another — Action by Wife — Nonresident Alien.</p> <p>Mills’ Ann. Stats., §§ 1508-1510, provides in substance that whenever the deáth of a person shall be caused by the neglect of another, and the neglect is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages, then the person who would have been liable if death had not ensued, shall be liable in an action for damages in a sum not exceeding five thousand dollars to the wife of such deceased. Held, that a nonresident alien widow is entitled to recover damages in Colorado for the wrongful act of defendant causing her husband’s death. — P. 509.</p>

<p>1. Witnesses — Competency—Knowledge.</p> <p>In an action for the deprivation of a water right, thereby-preventing plaintiff from irrigating his land, a person who had no knowledge of the value of lands of the character of plaintiff’s, and who had no knowledge of the supply of water which plaintiff was able to obtain from the stream interfered with by defendant, was not competent to testify as to the value of such land and water right. — P. 512. -</p> <p>2. Evidence — Opinion Evidence.</p> <p>In questions of value, a witness must often be permitted to testify as to his opinion; but, to make that opinion competent, it must be shown that he is qualified to speak on the subject. —P. 512.</p> <p>3. Witnesses — Direct Examination — Cross-examination.</p> <p>Where, on the issue of the value of a water right, a witness was called to prove that plaintiff’s land had been irrigated with watér from a stream, it was proper to ask the witness, on cross-examination, whether or not the supply of water could be obtained only at irregular intervals, since such questions were competent, and related to the very matter concerning which he testified on direct examination. — P. 513.</p> <p>4. Appellate Practice — Witnesses—Cross-examination—Denial of Right.</p> <p>The right to fairly and fully cross-examine a witness on the subjects of his examination in chief is absolute, and a .denial of the right constitutes prejudicial error. — P. 514.</p>

<p>1. Appellate Practice — Burden of Showing Error.</p> <p>The burden is on appellant to affirmatively establish prejudicial error. — P. 516.</p> <p>2. Same.</p> <p>Where on appeal it appears that the tax deeds in question were attacked on numerous grounds and were found invalid, and the testimony is not abstracted, no question is presented for determination which would justify a reversal, although it should be conceded that the description of the property as assessed was sufficiently accurate, as it cannot be said that the tax deeds were valid when they were assailed on other'grounds which the court may have found sufficient to invalidate them independent of the question of description. — P. 517.</p>

<p> Appeal from the District Court of Larimer County. </p> <p> Hon. Jas. E. Garrigues, Judge. </p> <p>Replevin by J. G. Seamans against Arthur Pratt. Prom a judgment for plaintiff, defendant appeals.</p>

Error to the District Court of Otero County. Hon. J. E. Riser, Judge. . Action by Jesse S. Gale and Charles M. Jackson against Charles A. Beerbohm, as county treasurer of Otero county. From a judgment for defendant, plaintiffs bring error.

<p> Appeal from the District Court of the City cmd County of Denver. </p> <p>Hon. P. L. Palmer, Judge.</p> <p>Action by Elizabeth Roberts against The Denver City Tramway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Partnership — Style of Name — Presumption.</p> <p>No presumption of partnership attaches from the use of the name, “Boulder Loan Company,” 'for the name implies a corporation — P. 532.</p> <p>2. Partnership — Existence—Evidence—Sufficiency.</p> <p>In an action against defendant on a check signed by another as the alleged manager of the firm of which defendant is claimed to be a member, evidence reviewed and held insufficient to warrant an inference that there was any such firm, or that defendant was a member thereof. — P. 532.</p> <p>3. Partnership — Estoppel.</p> <p>Where defendant was sued on a check executed by the manager of an'alleged firm, defendant was not liable on the theory of estoppel, although no such firm in fact existed, without proof that' his conduct was such as to estop him from denying the existence of a partnership, or that he was a member thereof. —P. 533.</p>

<p> Appeal from the County Court of Saguache County. Hon. O. D. Bryan, Judge. </p> <p>Replevin by Mary J. Shutts against Watson B. Tuttle. From a judgment for plaintiff, defendant</p> <p>appeals. '</p>

<p> Appeal from the County Court of Pueblo County. Hon. B. L. Gibson, Judge. </p> <p>Action by Fred M. Snow against The Schon-Klingstein Meat and Grocery Company. From a judgment for pláintiff, defendant appeals.</p>

Appeal from the County Court of La Plata County, lion. Chas. A. Pike, Judge. Action by William Hands and Susan Hands against H. S. Butler. From a judgment for plaintiffs, defendant appeals. Mr. Justice Gabbert and Mr. Justice Maxwell dissent.