Volume 44 — Colorado Reports

<p>1. Master and Servant — Injuries to Servant — Railroads—Acts of Congress — Automatic Couplers — Interstate Commerce.</p> <p>In an action by an employee against a railroad company for injuries alleged to have resulted from defendant’s failure to use automatic couplers, as required by act of congress, plaintiff cannot recover without showing that the cars in question were loaded with articles destined to some point outside the state. — P. 13.</p> <p>2. Appellate Practice — Error—Presumption of Prejudice.</p> <p>The general rule is, that error is presumed prejudicial to the party excepting thereto unless it affirmatively appears that it was not, and the rights of litigants can only be preserved by adhering to this rule. Cases should be tried before a jury on competent testimony, and when a party insists on getting before them testimony which is incompetent, he does so at his peril, and thereby has imposed on him, upon review, the burden of showing that the jury was not influenced in his favor thereby. — P. 14.</p> <p>3. Same.</p> <p>In an action by an employee of a railroad company for injuries alleged to have resulted from defendant’s failure to use automatic couplers, as required by act of congress, the testimony showed that the cars complained of were not provided with automatic couplers, but that they were not then engaged in interstate commerce; and the trial court undertook to cure the error in admitting such evidence by instructing the jury that the act of congress referred to was not involved, and that no liability of defendant could be predicated in violation thereof. Held, that it cannot be said that such error was cured by the instruction, and it will be presumed to be prejudicial to the party excepting thereto, unless the contrary affirmatively appears. — P. 17.</p> <p>4. Interstate and Intrastate Commerce — Power of Congress.</p> <p>State affairs are under the exclusive control of the respective states, and the act of congress requiring railroads engaged in interstate commerce to> equip their cars with automatic couplers cannot be extended to cars of such companies when employed only in the carriage of commerce between points in the state. —P. 17.</p> <p>5. Practice in Civil Actions — Instructions — Withdrawal of Evidence.</p> <p>In an action by an employee against á railroad company for injuries, one ground of recovery being defendant’s failure to use_ automatic couplers as required by act of congress, the evidence showed that, at the time of- the injury, the cars were not engaged in interstate commerce, but that defendant sometimes engaged in interstate commerce, and that it had failed to provide such couplers. Held, that an instruction that the act of congress requiring common carriers engaged in interstate commerce to equip their cars with automatic couplers was not involved, and that no liability to plaintiff could be predicated upon the violation thereof by defendant, was faulty, if not erroneous, in failing to advise the jury that all testimony bearing on the subject of defendant being engaged in interstate commerce was withdrawn from their consideration. — P. 17.</p> <p>6. Practice in Civil Actions — Allegations Not Supported by Evidence — Submission to Jury.</p> <p>In an action for personal injuries alleged to have resulted from various acts of negligence of defendant, allegations of negligence which the'testimony eliminated from the case, and as to which there was no testimony, should not be submitted to the jury. — P. 18.</p> <p>7. Master and Servant — Injuries to Servant — Negligence—Evidence — Admissibility—Other Acts.</p> <p>In an action by a servant against a railroad company for personal injuries, the only material issue was whether defendant had been negligent as to the ears between which plaintiff was injured. Held, that evidence that the car inspector employed at certain'yards was negligent, and in the habit of using liquors to excess, was inadmissible in the absence of testimony that the cars in question had ever been in such yards, or had been inspected by or had come under the supervision of such inspector; since the rule is, that evidence of other independent and disconnected acts of negligence are not admissible to establish the negligence charged. — P. 19.</p> <p>8. Practice in Civil Actions — Instructions—Applicability to Evidence. ■</p> <p>•' In an action for personal injuries, an instruction authorizing a verdict for expenses for outlay for physicians and nurses was erroneous, where the evidence failed to show any such expense; but, on the contrary, showed that plaintiff’s injury was treated free at a hospital maintained by defendant. — P. 20.</p> <p>9. Practice in Civil Actions — Instructions—Form.</p> <p>The purpose of instructions being to enlighten the jury and direct attention to the specific issue, they should not be unnecessarily voluminous, and should embrace only the statements of law by which the evidence is to be examined and applied. — P. 20.</p> <p>10. Damages — Personal Injuries — Amount Not Affected by Domestic Status — Evidence.</p> <p>The amount of recovery for personal injuries cannot be affected by whether plaintiff is unmarried or married, or has a large family; and any evidence on either of these subjects would be incompetent. — P. 21.</p>

Hon. H. V. Johnson, Judge. Action by Mas Sisack against I. Rude on an assigned contract. From a judgment for plaintiff in the county court on appeal from a justice of tlie peace court, defendant appeals.

Eon. Booth M. Malone, Judge. Certiorari in the.district court by Frank Carlton to review the proceedings of the county court in a divorce action brought against petitioner by Marie Carlton. From a judgment granting the writ Marie Carlton brings error.

'Appeal from the County Court of Pueblo County. Hon. L. B. Gibson, Judge. Action by Joe Dye against tbe city of Pneblo and its board of park commissioners. Prom a judgment in tbe county court, on appeal from tbe justice of tbe peace court, against tbe city and dismissing tbe action as to tbe park board, tbe city appeals.

Hon. John I. Mullins, Judge. Petition by Frank Carlton for writ of man-damns against Ben B. Lindsey, as county judge. From a judgment granting an alternative writ, respondent brings error.

<p>1. Pledges — Conversion by Pledgee — Pleading—Complaint—Mistake In Note — Allegation of Note Intended — Sufficiency.</p> <p>A complaint, in an action to recover damages for the unlawful sale, without notice, of collaterals to a note, alleged the making of the note, setting it out in haec verba, and then -alleged that all that portion of the note beginning and ending with certain words which related to the sale of collaterals without notice, was left in the note as a part thereof, while, under the agreement of the parties, it should have been erased. Held, that the complaint sufficiently set out the note alleged to have been the one intended, under the rule that, where relief is sought on the ground that by mistake an agreement as contained in a written instrument does not conform to the one actually made between the parties, the one which was made must he alleged and the real intention thereby clearly disclosed. — P. 53.</p> <p>2. Same — Uncertainty of Terms.</p> <p>A promissory note was given payable one day after date, and recited the deposit of certain shares of stock with the payee as collateral security. Held, that the note was not vague or uncertain in that it could not he determined what the agreement was as to sale of the collateral security, or when the time to redeem the collaterals expired; since, in the absence of a contract fixing the manner in which the sale should be made, a “power of sale” will be construed to be such power as exists in respect to pledges generally, and exercised in the same way; that is, that the power of sale can he exercised only upon reasonable notice to redeem and of the time and place of sale. — P. 54.</p> <p>3. Reformation of Instruments- — Pleading — Complaint — Relief Asked — Effect.</p> <p>In an action to recover damages for the unlawful sale, without notice, of collaterals to a note, the complaint alleged that the note contained by mistake a provision for sale without notice, which should have been erased. Held, that the complaint was sufficient to authorize the relief asked for, though the reformation of the note was not prayed for, since the measure of plaintiff’s rights is the facts which are alleged, and not the prayer of the complaint. — Pp. 55, 56.</p> <p>4. Bills and Notes — Promissory Notes — Extension of Payment— Consideration.</p> <p>The delivery of an unrecorded patent to land to the payee of a note is a sufficient consideration for the promise of the latter to extend the time of payment of the note, for although the patent is of no value to the payee, it would cause expense to the maker to procure another patent. — P. 57.</p> <p>5. Same — Time of Extension — Necessity.</p> <p>The failure to extend the payment of a note to any definite time does not render the extension invalid as between the parties. — P. 57.</p> <p>6. Pledges — Conversion by Pledgee — Sale Without Notice.</p> <p>A note payable one day after date, secured by collaterals, contained no provision as to the sale of the collaterals without notice, and the note was indefinitely extended. Held that, in an action to recover damages for the wrongful sale of the collaterals without notice, it could not he contended that since the note was payable on its face at a fixed time, a demand for payment was not a requisite condition precedent to the sale of the collaterals, in view of the fact that the payment of the note was extended indefinitely, and therefore became payable on demand and required notice to the maker. — P. 58.</p>

Hon. Samuel D. Carpenter, Judge. Action by Herman Ten Winkel against Tbe Adams Express Company. From a judgment for plaintiff, defendant appeals. Tbis cause was tried three times in tbe court below, tbe first two trials resulting in a disagreed jury. In' tbe third trial, frpm which tbe present appeal was taken, a verdict and' judgment were- rendered in favor of appellee, who was plaintiff below, for the full amount claimed with interest, viz: $1,213.33.

Hon. Junius Henderson, Judge. Action by John Jennings against Tbe Brotherhood Accident Company. From a judgment of non-suit in the county court on appeal from a justice of the peace court, plaintiff appeals.

Appeal from the District Court of the City and County of Denver. Hon. Peter L. Palmer, Judge. Action by Thomas S. Mackenzie against George E. Hannan, in which Emma Hannan intervened. Prom a judgment for intervenor, defendant appeals.

<p>1. Practice in Civil Actions — Evidence — Instructions — Sufficiency.'</p> <p>Where tlie evidence on the issue presented by the pleadings is so conflicting that it is in equilibrium, it is essential that the jury be correctly instructed in the law upon that point. — P. 85.</p> <p>2. Cities and Towns — Streets—Use as Highway — Negligence— Misleading Instructions — “Contract” — “Collision” — Words and Phrases.</p> <p>In an action for injuries to a traveler on a street in a collision with defendant’s team, the complaint alleged that the team struck plaintiff, and the answer denied it, but admitted that plaintiff came into collision with the team, and the evidence was conflicting, and two witnesses testified that the team was practically at a standstill when plaintiff collided with it. Held that, an instruction stating that it was admitted that defendant was driving along the highway and came in contact with the plaintiff, was misleading, as leaving the jury to believe that defendant admitted that he was the aggressor; since, under the circumstances, the word “contact” in the instruction might have been considered by the jury as synonymous with “collision.” — P. 85.</p> <p>3. Practice in Civil Actions — Instructions—Applicability to Evidence.</p> <p>Where, in an action for injuries to a traveler on a street in a collision with a team, there was no evidence that the driver drove the team on and over plaintiff and ran him down, it was err-or to give an instruction that if the driver saw plaintiff, or should, in the exercise of ordinary care, have seen him, and drove his team on or over plaintiff and so ran him down, he was negligent, since such instruction assumed that there was evidence that the driver drove his team on and over plaintiff. — P. 86.</p> <p>4. Practice in Civil Actions — Misleading Instructions.</p> <p>Instructions should be based on the evidence, and an instruction correct in principle, which impliedly assumes the existence of evidence not given, is erroneous because calculated to mislead the jury. — P. 86.</p>

Hon. Chas. C. Holbrook, Judge. Action by Rudolph Knoblauch against Mathaus Seyfried. From a judgment for plaintiff, defendant appeals: . The amended complaint alleges that defendant Seyfried sold, and by deed of warranty conveyed, to plaintiff Knoblauch, for the consideration of five thousand dollars, certain lands and two shares of water in an irrigating ditch.

Hon. John T. Shumate, Judge. Action by Walter E. Tibbetts against Lonise C. Terrill, David P. Terrill, J. A. Alley and John Gray, to subject property fraudulently conveyed to a judgment. From a judgment for defendants, plaintiff appeals.

<p>Contracts — Modification—Effect.</p> <p>The lessees of a mine had an option to purchase for $15,000, payable in installments, the royalties under the lease to be applied on the purchase price. After about $3,000 had been paid in this manner, the lessees purchased the property for additional $9,000, but nothing was said about the royalties accruing 'during the last month. Held, that the only variation from the original agreement being to fix the purchase price at $9,000, the lessees had the right to apply the amount of such royalties on the purchase price last agreed upon.- — P. 109.</p>

<p> Appeal from the District Court of Chaffee County. Hon. M. 8. Bailey, Judge. </p> <p>Action by Gilbert A. Walker against H. T. Bruce. From a judgment for defendant, plaintiff appeals.</p>

<p> Appeal from the County Court of Mesa County. Eon. Walter 8. Sullivan, Judge. </p> <p>Action by William Boyd against The Bio Grande Western Bailway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales — Conditional Sales — Contract Construed.</p> <p>A contract recited that S. desired to have the “use” of plaintiff’s building and saloon fixtures, for the purpose of conducting a saloon and of becoming “the owner of said fixtures when fully paid for”; that S. could use the premises for a specified term; that he should make specified monthly payments to plaintiff, until the total payments, after deducting monthly ground rent, should equal the cost of the building, fixtures, etc., and 8 per cent, per annum interest thereon; that S. should then be deemed the owner of the fixtures; that thereafter he should pay plaintiff ?55 per month until the expiration of his ground lease; and that S.’s failure to make the monthly payments should evidence a relinquishment of his rights under the contract. Held, that such contract evidenced a conditional sale of the fixtures, and not a lease thereof, S. becoming the owner upon reimbursing plaintiff for his investment interest. — Pp. 129, ISO.</p> <p>2. Sales — Conditional Sales — Rescission—Seller’s Duty.</p> <p>Under § 2027, Mills’ Ann. Stats., if a conditional sale is rescinded, the seller, to make the transaction available against the buyer’s creditors, is bound to immediately take and keep actual and continued possession of the personalty. — P. 132.</p> <p>3. Sales — Conditional Sales — Rights of Creditors.</p> <p>Secret liens, which treat the vendor of personal property who has delivered possession of it to the purchaser as the owner until the payment of the purchase money, cannot be maintained. They are constructively fraudulent as to creditors, and the property, so far as their rights are concerned, is considered as belonging to the purchaser holding the possession. — P. 132. '</p>

Hon. Albert 8. Frost, Judge. Action by George E.- Hannan against Edward A. St. Clair for injuries to a horse and buggy caused by defendant’s automobile. From a judgment for plaintiff in the county court on appeal from a like judgment in the justice court, defendant appeals.

Hon. James L. Bussell, Judge. Action by Frank W. Stubbs and Lonis 0. Jack-way, copartners as Stubbs & Jackway, against D; J. McGillis and Peter Monteitb, copartners as Mc-Gillis & Co., D. J. McGillis and Peter Monteitb; From a judgment for defendants, plaintiffs bring error.

<p>Insurance — Actions—Allowance of Attorney’s Fees.</p> <p>It is error to allow attorney’s fees to the insured recovering in an action on an insurance policy;- — P. 145.</p>

Appeal from the District Court of Delta County. Hon. Theron Stevens, Judge. Action by Maggie Mower against L. M.- Wales, N. E. Clark, as public trustee of Delta county, Colorado, and D. S. Baldwin. From a judgment for plaintiff, defendants appeal.

Eon. John I. Mullins, Judge. Action by Adelaide F. Magivney against tbe city and connty of Denver and The Denver Union Water Company. From a judgment for plaintiff against tbe city and county of Denver, tbe latter appeals. ' Tbis action was brought by appellee against appellant and Tbe Denver Union Water Company, to recover damages for injuries suffered through tbe negligence of defendants.

Appeal from the District'Court of the City and County of Denver. Hon. Samuel L. Carpenter, J%idge. Action by Mary B. Bacon against the city and county of Denver. From a judgment for plaintiff, defendant appeals.

<p> Appeal from the District Court of La Plata County. Hon. James L. Bussell, Judge. </p> <p>Action by Frederick Mentzel against Sam G-. Wall. From a judgment for defendant, plaintiff appeals.</p>

<p>The secretary of a corporation, who is also a director, is not entitled to compensation for his services as secretary, in the absence of any provision in the charter or by-laws, or of a resolution or contract, providing for such compensation.</p>

<p>Attorneys-at-Law — Practicing Without a License' — Contempt — Defenses.</p> <p>Chapter 77 of the Session Laws of 1905, provides that any person who shall, without having a license from the supreme court, advertise or hold himself out as an attorney, or who shall appear in any court of record to conduct a suit in behalf of another, shall be deemed guilty of contempt. Respondent was admitted to practice in Kentucky and was in active practice there for more than 20 years, and was admitted to practice in the territory of New Mexico and before the Department of the Interior, and is still so entitled to practice. He subsequently removed to Colorado and made application to practice law, endeavoring to comply with all the requirements of the board of examiners, but while his application was pending before the board, he was advised by the judge of the district in which he resided that he had a right to appear in a court of record, and, acting upon such advice, and in daily expectation of receiving a license, he accepted employment as an attorney. He did not know of the above law until he learned through the public press that an information under it had been filed against him; and immediately on receiving a copy of the information, he stopped practicing, which facts he set forth in his answer, and alleged that he would no longer hold himself out as an attorney-at-law, and further alleged that no charge could be made against his honor as an attorney and as a man, and such statements were not controverted. Held that, although respondent violated that statute, it is apparent he did not do so intentionally, and ■ the duty of the court does not require his punishment.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Eon. Louis W. Cunningham, Judge. </p> <p>Action by Carrie L. Wight against The Colorado Springs Company, a corporation. From an order overruling a demurrer to the complaint, defendant appeals.</p>

<p> Error to Jefferson District Court. </p> <p> Hon. Frank E. Johnson, Judge. </p>

<p>1. Pleading — ‘Amendment — Under an order remanding a cause to the inferior court “for further proceedings according to law,” the trial court may allow such amendment of the pleadings as justice requires. — P. 211.</p> <p>2. Exceptions — When Required — An order allowing an amendment of the complaint will not be reviewed in the absence of a bill of exceptions. — P. 212.</p> <p>3. Contempt — Disobedience of Decree Merely Irregular — A judgment within the issues, however irregular, is not void, in such sense that disobedience of its mandate will not constitute contempt. — P. 212.</p> <p>An attorney who advises his client to disobey an injunction is guilty of contempt. — P. 213.</p>

<p> Appeal from Larimer District Court. </p> <p> Hon. Christian A. Bennett, Judge. </p>

<p> Appeal from Larimer District Court. </p> <p> Hon. Christian A. Bennett, Judge. </p>

. Eon. Christian A. Bennett, Judge. Defendants were engaged in operating the Adit Tunnel System in Ward mining district, Boulder county; they were driving what was called the East Columbia drift and also what was known as the East Columbia crosscut to the north therefrom; the East Columbia drift connected with the Niwot crosscut, which in turn led to other parts of the system.

<p>Original Information.,</p>

<p>Writ of Error — Process—If the transcript of •'the record is filed in the supreme court, a writ of error need not be delivered to the clerk of the court below. — P. 256.</p> <p>Unless the sci. fa. to hear errors is issued within three years from the entry of the judgment complained of, or is waived by an appearance, the supreme court has no jurisdiction and the writ of error will be dismissed. — Pp. 256, 257.</p>

<p>1. Pleading — What Must Be Specially Pleaded — Payment must be specially pleaded.' — P. 262.</p> <p>So of a release or written acquittance. — P. 264.</p> <p>2. Pleading — A count in indebitatus assumpsit is admissible under the code. — P. 265.</p> <p>3. Evidence — Relevancy—Evidence of either an express or implied contract may sustain a count in indebitatus assumpsit. —P. 265.</p> <p>4. Payment — Partial Payment in Full — Where a demand is disputed and unliquidated, and part is offered in full of the total demand, its acceptance precludes an action for the residue.— P. 270.-</p> <p>5. Release — Impeaching—A release given in full of an unliquidated and disputed claim, upon receipt of part of what is demanded by the creditor, is not to be overthrown by evidence that there was no consideration therefor save the sum thereby acknowledged to have been paid. — Pp. 269-271.</p>

Hon. C. 8. Essex, Judge. The question presented by counsel for both parties .is, whether the high school committee of Union high school No. 1, in Otero county, is composed of three members of the board of directors of school district No. 11, in that county, and the county superintendent of schools of the county, or of the five members of the board of directors of that district and the county school superintendent.

<p>1. Contracts — Construction' — Certainty—The promise of a man to a woman, upon consideration, to “take care of and support her,” so long as she may suffer from certain infirmities, is not void for uncertainty. — P. 282</p> <p>2. Contracts — Defenses—The promise of a man to a woman that, in consideration of her relinquishing him from an engagement of marriage, he will support her during a specified disability, is not abrogated or released by her subsequent marriage to another. — P. 281.</p> <p>3. Contracts — Valid—A woman is seduced under promise of marriage and maintains illicit relations with her affianced husband. In consideration of her releasing him from the promise of marriage, he agrees to support and care for her. His promise is not opposed to good morals. — P. 282.</p>

Eon. William P. Seeds, Judge. This action was brought under what is known as the co-employees’ liability act of 1893. Plaintiff’s husband, John Brady, was employed by defendant . on one of its suburban trains in the Cripple Creek district. The complaint in substance charges that without negligence on his part the said Brady met his death through the negligence of a conductor and engineer operating another of defendant’s trains.

Hon. Peter L. Palmer, Judge. The appellant (defendant below), an insurance company, insured a frame building belonging to the appellee (plaintiff below), for the sum of $150. Shortly thereafter she sold the insured property to one Max Rosenthal, and, with the consent of the company, assigned the insurance policy to him. To se’cure the payment of a part of the purchase price, she took from him a mortgage on the property for the sum‘of $500..

<p>1. Pleadings — Amendments — An amendment presenting a new issue, offered at the trial, nearly six months alter the original answer was filed, and nearly two years after the institution of the action, was properly refused. — Pp. 304, 305.</p> <p>2. Appeals — Error Without Injury — If a party is permitted to give evidence of the facts asserted by an amendment offered, the rejection of the amendment is not prejudicial error. — P. 305.</p> <p>3. Measure of Damages for Non-delivery of Goods Sold— Ordinarily the damages for failure to comply with a contract for the sale of chattels is the difference between the contract price and the market price; but, if like chattels are not to be had, and the vendor knows that the purchaser intended them for a special purpose, he is liable for any special damages resulting from his failure to deliver, which are the natural consequences of his default, e. g.: where hay is purchased to feed cattle, and, by the seller’s refusal to deliver, the buyer is compelled to drive his cattle to a great distance to procure feed for them, and losses are sustained from the shrinkage of the cattle and the death of some by starvation. — Pp. 305, 306.</p> <p>4: Damages — Certainty — Plaintiff is not required to show the amount of his damages with absolute certainty.' — P. 306.</p> <p>5. Contract — Contracts Construed — Agreement to deliver hay in stack to he measured “by the same rule and in the same manner” used in another instance specified, it seems that the formula used in the former instance for computing the cubic contents of the stack is also to be followed. — Pp. 303-306.</p>

<p>1. Constitutional Law, Article XX — The twentieth article does not affect state or county, but only local or municipal governments. A claim' against the former county of Arapahoe, is a liability against the county of Denver, not against the city and county, and is to be prosecuted according to the provisions .of Mills’ Stats., § 801. — P. 310.</p> <p>2. Counties — Actions Against — A county warrant is to be en-' forced by mandamus to compel payment. An action upon »a warrant, inasmuch as the judgment would be satisfied by a new warrant, is an idle proceeding which the courts will not tolerate. — P. 310.</p> <p>Ño action can be maintained against the county until the claim has been presented to the board of commissioners for audit and allowance. — P. 310.</p> <p>3. Mandamus lies to compel payment of a county warrant. —P. 311.</p>

Hon. Peter L. Palmer Judge. This controversy grows ont of a sale of a tract of land consisting of about one hundred and sixty-seven acres, situated in Lake county, in the state of Colorado, with a gold mine, -known as the Gordon- - Tiger mine, and a • ranch and a mill site located thereon.

<p> Appeal from Denver District Court. </p> <p> Eon. F. T. Johnson, Judge. </p>

<p> Appeal from Denver District Court. </p> <p> Hon. Peter L. Palmer> Judge. </p>

<p>1. Office — Remedy for Usurpation — The provisions of chapter 27 of the code supersede the common-law proceeding of quo warranto, and provide the exclusive method, so far as the district court is concerned, for investigating the usurpation of a public office. — Pp. 348, 349.</p> <p>The proceeding, like quo warranto, is for the protection of the interest of the public, and should not be allowed for the promotion of private rights.</p> <p>Railroad companies will not, merely for the protection, of their individual rights, upon their own relation, the district attorney having refused to act, be heard to assail the title of the members of the State Railroad Commission, upon the ground of the unconstitutionality of the statute under which they were appointed. — Pp. 351-354.</p> <p>2. Constitutional Law — Departments of Government — The judiciary have no power, by any form of action, legal or equitable, to control or interfere with an administrative board exercising discretionary powers, in advance of any action taken by such board. — Pp. 356, 358.</p> <p>The rule applies to officers of both, the legislative and executive departments. — P. 358.</p>

<p>1. Water Rights — Evidence of Title — Possession and use is prima facie evidence of title. — P. 363.</p> <p>2. Water Rights — Change of Point of Diversion — The right of one of the petitioners under the act of March 27, 1903, for leave to change the point of diversion, being merely equitable and inchoate, it was held proper to permit the. holder of the legal title to file his written.consent to the change. — P. 364.</p> <p>It is error, in such proceeding, to decree that the petitioner may change the point of diversion of a specified fraction of the water- of the ditch without determining, where this is. in question, what volume of water was, by - a previous general decree, awarded t,o such ditch. — P. 365.</p> <p>The length of time the petitioner may use the water at the new place of diversion is not to be settled by the decree in the special proceeding prescribed by the Act of March 27, 1903 (Laws of 1903, 278), unless it appears that, if the decree be not limited in that respect, injury will necessarily or by reasonable inference result to a third person. — P. 369.</p> <p>Provision must be made by-the decree to protect the rights of third persons. If the circurnstances are such that this is impossible, the petition should be denied, e. g.: where it appeared that, by the proposed change, a junior appropriator would be deprived of a share of a volume of water, the result of seepage, it was held error to make no provision against this. — P. 369.</p> <p>3. Water Rights — Adjudication of Priorities — Decree—The general decree adjudicating the priorities to the use of water in a district is to be entered in the judgment book. That is the best evidence of what the decree was. A paper found in the office of the clerk of the court, purporting to be a subdivision of a general decree awarding priorities, though bearing' the approval of the judge then presiding in the court, does not control the judgment book. — P. 366.</p> <p>4. Judgment — Evidence of — The judgment book is preferred to a paper found in the clerk’s office and purporting to be the decree of the court in the same matter, even although it bears the approval of the judge of the court then presiding. — Pp. 366, 367.</p> <p>5. Water Rights — Adjudication of Priorities, Decree — A decree giving the width, depth and grade of the ditch is not void merely for its failure to give its capacity in second feet. — P. 368.</p> <p>Nor for its failure to specify the area which may be irrigated from the ditch, where the preliminary statement required by the statute contains the acreage. The decree will, by intendment of law, be limited to the acreage set down in the decree. —P. 368.</p> <p>6. Judgments — Construction of — A decree is to be construed with reference to the other portions of the record, e. g.: a decree declaring the priority of a certain ditch to the use of a certain volume of water, but not specifying the acreage of the lands irrigated therefrom, may be supplemented by reference to the preliminary statements of the ditch owner.- — P. 368.</p> <p>7. Evidence — Competency — When the decree adjudicating priorities in a district fails to specify the number of acres of land, to be irrigated from a particular ditch, the omission may, in a proceeding to change the place of diversion, be supplemented by the evidence of the acreage actually irrigated after the entry of the decree. — P. 368.</p>

<p>1. Jury — Challenge for Cause — Bias—Where, in an action upon a life insurance policy in which, the infant children of the insured are beneficiaries, one called as a juror testifies on the voir dire that he was an old friend of deceased, that he might unconsciously favor his children, and probably would, a challenge for cause must be sustained. — P. 374.</p> <p>2. Pleadings — Complaint—Complaint on an insurance policy must not only allege the contract, but the happening of the contingency whereby the insurer becomes liable for the indemnity to which the plaintiff is entitled. — P. 375.</p> <p>3. What Must Be Pleaded Especially — Defendant, relying on non-performance by plaintiff of some condition precedent to liability, must plead it. — P. 375.</p> <p>4. Evidence — Burden of Proof — Insurance company alleging forfeiture of the policy, has the burden of proof. — P. 375.</p> <p>5. Insurance — Forfeiture—A policy issued by a benevolent association provided that the failure to pay certain assessments before, the last day of the month in which the assessment was levied, should worlr a forfeiture of all the rights of the member. The failure of the member to comply with this condition is not waived by a tender of the assessment after his death. — P. 378.</p> <p>And acceptance of the payment by the proper officer, merely provisionally, and under an agreement to present the matter to the lodge, does not waive the conditions of the policy nor cure the default. — P. 377.</p>

<p>Appeal from Denver District. Court.</p> <p> Hon. F. T. Johnson, Judge. </p>

<p>.Criminal Law — Speedy Trial — Under Mills’ Stat., §2113, one convicted of a misdemeanor before a justice, and appealing to the county court, must, on his motion, be discharged, if not tried by the third term of the court — the delay occurring not upon his application, but solely by reason of the overcrowded condition of the docket. — Pp. 384-386.</p> <p>The motion is not waived by consenting to its advance upon the hearing docket; nor, it seems, by delay in its presentation until the fifth term, of the assignment of the cause for trial after the lapse of the third. — Pp. 387, 388.</p>

<p> Appeal from Denver District Court. </p> <p> Eon. Peter L. Palmer, Judge. </p>

<p>1. Pleading — Departure—Where, in an action of ejectment, the defendant pleads title hy a tax deed, the replication may assail such deed for irregularity in the conduct of the sale. — Pp. 397, 398.</p> <p>2. Ejectment — Mesne Profits — The plaintiff recovers rents. —P. 399.</p> <p>3. Statutes Construed — The statute, Mills’ Stat., § 435, providing that “all conveyances duly executed and delivered entitle the grantee to immediate possession,” does not extend to a tax deed void upon its face. — P. 399.</p> <p>4. Tax Title — Assailing — Tender of Taxes — Under Mills’ Stat., § 3904, plaintiff in ejectment may assail a tax title set up by defendant, without malting tender of the taxes paid by the defendant. — P. 400.</p> <p>Sale en masse of noncontiguous parcels assessed separately, is void. — P. 401.</p> <p>5. Tax Deed — Void—A treasurer’s deed which shows upon its face noncompliance with essential preliminary steps in the sale, is void. — P. 402.</p> <p>6. Pleading — Prayer — Where a defendant appears and answers, any appropriate relief may he awarded, whether prayed or not., e. g.: in ejectment, the cancellation of a void tax deed set up by defendant. — P. 402.</p>

<p>1. Indictments and Informations — Objections to Form — An objection to an information for a matter of form must be taken in the court of the first instance. — P. 404.</p> <p>2. Evidence — Order of Proof — The admission in rebuttal of evidence properly admissible in chief is not an abuse of the discretion of the trial court, where the defendant is afforded opportunity to meet it. — P. 404.</p> <p>3. Instructions — Oral—One who consents that the charge may be oral cannot assign this for error. — P. 404.</p> <p>4. Appeals — Abstracts—Where the instructions are not set out in the abstract, the court will not consider error assigned thereon. — P. 405.</p> <p>5. Evidence — - Admissions by Silence — An accused person was shown by the prosecuting officer certain letters purporting to have been written by his former neighbors, in another state, contradicting his previous statements. He made no denial of what was contained in these letters. Held, that the letters were admissible as throwing light upon the conversation between the prosecutor and defendant, but not evidence of the truth of any statements contained in them.' — P. 405.</p>

<p>Corporations — Directors—Authority — The acts of the directors in a matter in which they have a direct personal interest do not bind the corporation, e. g.: where three directors vote to acknowledge what is not a debt of the corporation, and two of the three are, by such vote, made creditors of the company.- — P. 408.</p>

<p>1. Water Rights — Grant of — The owner of eighty acres of land diverted a small stream to irrigate it. He afterwards sold five acres with the right to a share of the water proportionate to this share of the land. The grantee receiving his proportion of the water may not complain, though it is entirely insufficient. The grantor, is not responsible for the unlawful diversion of the waters by a stranger. — Pp. 43.1, 412.</p> <p>2. Landlord and Tenant — Landlord’s Liability — A landlord is not responsible for the misconduct of the tenant in diverting water from one who, by covenant of the landlord, is entitled thereto. — P. 412.</p> <p>3. Act of God — Grantor of a water right is not responsible for the failure of water by reason of a period of drought. — P. 413.</p>

<p>1. Principal and Agent — Powers of Agent — The manager of a private corporation engaged in the sale of lumber at retail, has no implied power to borrow money on the principal’s credit, or execute in' its name a promissory note therefor. — P. 414.</p> <p>2. Principal and Agent — Ratification—Agent borrows money giving the joint note of the principal and himself therefor, and deposits it in bank to the credit of his principal to make good a shortage in his account, concealing from his principal the shortage, the loan, and the deposit. Held, though the money was used for the account of the principal, there was no ratification. —P. 415.</p>

<p>Exceptions — When Necessary — An agreed statement of facts filed in the court below, and upon which, the cause is tried, must be presented-by ,a bill of exceptions. — P. 417.</p>

<p> Appeal from Denver District Court. </p> <p> Hon. Peter L. Palmer, Judge. </p>

<p> Appeal from Logan County District Court. </p> <p> Bon. E. E. Armour, Judge. </p>

<p>1. Demand — When Necessary — One who lias collected money for another, is liable to an action therefor by the principal, without prior demand made. — P. 450.</p> <p>2. Interest — Moneys Detained — Agent detaining moneys of his principal is not liable for interest unless such detention was without the principal’s consent. — P. 453.</p> <p>3. Pleadings — Damages—Plaintiff who would recover interest for the mere detention of money received by another for his use, must aver that the detention was without his consent. — P. 453.</p>

<p>1. Eminent Domain — Damages — The land owner whose premises are to he divided by a railway, rendering a private crossing necessary, as well as an artificial conduit to conduct water for irrigation from one part to another, is not required to accept the promise of the railway company that it will construct these conveniences. . He may insist 'upon an award in money of all the damages which he will sustain, taking upon himself the burden of doing whatever is necessary to the enjoyment of his lands after the taking. — P. 458.</p> <p>2. Appeals — Oral Argument — Either party, on request, Is entitled to an oral argument, but a demand therefor separate from the brief should be made in writing and filed with the clerk. —P. 459.</p>

<p>1. Administration — Reopening—Where justice requires, the court may vacate the order discharging an administrator and direct administration to proceed. — Pp. 466-471.</p> <p>2. Equity — Subrogation—Husband, in his lifetime, contracted to purchase lands of plaintiff. He died before payment of the purchase money. The widow was appointed administratrix, and, with moneys apparently pertaining to the estate, paid the remainder of the purchase price; and both the vendor and the widow believing her to be the sole heir, the deed was executed to her, when, in fact, there were children of a former marriage residing in another state. These, knowing of the contract of purchase, and that the administratrix had returned the lands in her inventory, and that the vendor had already conveyed then% to her, concealed the fact of their rights until the estate was closed and the administratrix discharged, and then sued the vendor for the wrongful conveyance of the lands to the administratrix. In fact, the administratrix had paid debts of the deceased to a large sum which, in view of her supposed heirship, had never been allowed to her; and a large sum had been awarded to her by appraisers for her separate allowance, which had never been formally allowed by the court. Taking these sums into account, the administratrix’ was not in debt to the estate, and the moneys which she had paid to the vendor were her own moneys. Held, that the vendor might assert these facts in defense. — Pp. 466-471.</p> <p>3. Pleadings — Amendment — A meritorious defense which comes to the knowledge of the defendant during the trial, may be presented by an amendment. — P. 466.</p> <p>4. Estoppel by Conduct — Heirs of the decedent, knowing that the widow and administratrix believes herself to be the sole heir, conceal their rights and permit the administratrix to close the estate without procuring allowances which ought to be made to her. They will not be permitted to avail themselves of the advantage so acquired. The administratrix may reopen the estate and procure the proper allowance to be made. — P. 470.</p>

<p>1. Insurance — Application — Misrepresentation — A warranty of the truth of the “description, condition, situation and title,” in an application for insurance, does not extend to the dimensions. —P. 476.</p> <p>Where the application is made part of the contract, a warranty of the value of the property insured.must be substantially true. Where the warranty" makes gross exaggeration of the value, there can be no recovery. — P. 478.</p> <p>When the policy is avoided for misrepresentation, the premium cannot be recovered. — P. 480.</p> <p>Misrepresentation as to the title, when, in fact, the agent of the' insurer is truthfully informed of all the facts, is not fatal. P. 486.</p> <p>The insurer is not to avail of a blause declaring the policy void if the building is not upon ground owned in fee simple by the insured, if the application shows upon its face that the applicant claims only an estate for years. — P. 487.</p> <p>2. Insurance — Conditions—A provision that other insurance shall not be taken out except by consent of the insurer is valid; but it is not violated by a mere application for insurance, and the execution, of the second policy, never delivered. — P. 482.</p> <p>3. Insurance — Construction of Policy — A policy is construed most favorably to the insured. It being provided that vacancy of the building for five days witho.ut consent of the insurer shall avoid the policy, and that it shall be the duty of the insured to report such vacancy within five days of its occurrence, and that any failure to so report shall avoid the policy, requires notice to be given only when the vacancy is without the consent of the insurer. — P. 483.</p> <p>4. Insurance — Waiver of Conditions — Issuing a permit that a building may remain vacant for a certain period, with knowledge that it had previously been vacant without the consent of< the insurer, waives the right to avail of the previous vacancy. —P. 485.</p> <p>5. Instructions — Nondirection, as to a point to which po instruction correct in law is prayed, is not error. — P. 485.</p>

<p>1. Water Rights — Whether an appurtenance of lands, so as to pass by conveyance of the lands, depends upon the circumstances of the ease and the intention of the parties. — P. 492.</p> <p>2. Easements — Implied Grant — When a deed of agricultural lands expressly conveys the right to a certain volume of water for their irrigation, from a source specified, no intention to grant any other easement or right in the water will be implied. — P. 493’.</p> <p>3. Contracts — Construction — The construction placed upon the grant by the parties themselves will not override the explicit language of the paper. — P, 494.</p>

<p>1. Vendor and Vendee — Contract—The mere deposit in escrow of a conveyance of lands, to be delivered upon payment of a specified sum of money at a certain time, followed by payments on account by the grantee, does not amount to an agreement on the part of the latter to pay the purchase money. Even though he fraudulently procure the deed, and place it upon record, no lien for the purchase money can, upon these facts, without more, be enforced. — Pp. 498, 499.</p> <p>2. Vendor’s Lien — A complaint to enforce a vendor’s lien must affirmatively show a contract of sale consummated between the parties. — P. 497.</p> <p>Two parcels of land belonging to different parties are sold for a gross sum; no lien will be enforced unless it be shown what part of the gross sum was to be paid for each tract. — P. 498.</p>

<p> Error to Denver District Court. </p> <p> Eon. Peter L. Palmer, Judge. </p>

<p> Appeal from Gilpin District Court. </p> <p> Eon. A. E. DeFrance, Judge. </p>

<p> Error to Pueblo District Court. </p> <p> Hon. John H. Voorhees, Judge. </p>

<p> Error to the Lake District Court. </p> <p> Hon. Frank W. Owers, Judge. </p>

<p> Error to Mesa District Court. </p> <p>Hon. Sprigg Shackleford, Judge.</p>

. Eon. George W. Allen, Judge. Edward Shapter died in. February, 1901. March 1st of that year a will was presented to the county court of the city and county of Denver for probate and was subsequently duly admitted to probate. Thereupon contestants, being nonresident heirs of deceased, appealed to the district court and in.

Hon. M. 8. Bailey,-Judge. This action was brought by relator Miller against appellant as surety upon an administrator’s bond given by Malcolm G. Wright, and also against said Wright as principal in.said bond. It was so brought under the, statute whereby sureties upon such bonds are made liable for the failure of the principal to comply with law or with the covenants of the bond executed pursuant to law.

<p>1. Pleading — The complaint in an action tor the conversion of goods must contain all the allegations which at common-law were material to a declaration in an action of trover. — P. 583.</p> <p>Amendments — The code favors amendments in furtherance of justice. To refuse an amendment presented upon the trial, asserting material matters which have come to the knowledge of the party during the trial, is an abuse of discretion. — P. 587.</p> <p>Greater liberality to be allowed in the amendment of the answer than the complaint. — P. 588.</p> <p>2. Damages — The measure of damages in. trover is the market value at the time of the conversion, with interest. — P. 583.</p> <p>Evidence as to — In trover for cattle plaintiff claimed under a chattel mortgage of certain steers and certain cows. Defendants had received from the mortgagee and sold fifty-seven head of cattle of the same brand, but how many were steers and how many were cows did not appear. The cows were shown to be much less in value than steers. Held, there was no sufficient basis for an estimate of damages. — Pp. 584, 585.</p> <p>3. Chattel Mortgage — Description—One owning sixty-four cows, all bearing a certain brand, executed»a chattel mortgage of “fifty-six cows from two to six years old, branded,”- etc., located upon certain lands described; held void. — P. 584. •</p> <p>4. Estoppel — By Conduct — Mortgagee of live stock knowing that the animals have been sent to a commission merchant for sale takes no steps to reclaim them, or inform the commission merchant of his right until the cattle have been sold, and the proceeds paid to the mortgagor, mortgagee meanwhile looking to the mortgagor for such proceeds. He is estopped by his laches to demand the value from the commission merchant. — Pp. 586-587.</p> <p>5. Trover — Conversion — The mere exercise of acts of ownership, if not inconsistent with the title of another, or if the owner consents, is not a conversion. — P. 589.</p> <p>6. Instructions — Must State All the Issues — It is error to set forth in the instructions the case made by the complaint, and ignore the issues presented by the answer. — P. 589.</p> <p>It seems that a probability that the jury will be misled by an error in the instructions is fatal. — P. 589.</p> <p>7. Tender — Conditional—An offer'of payment on condition that the payee will execute a receipt of equivocal import which may be construed as a waiver of the payee’s demand on another account is no tender. — P. 590.</p>

<p> Error to the Pueblo District Court. </p> <p> Hon. N. Walter Dixon, Judge. </p>

<p> Error to El Paso County Court. ' </p> <p> lion. Robert Kerr, Judge. </p>

<p> Error to El Paso County Court. </p> <p> Eon. Robert Kerr, Judge. </p>