Volume 47 — Colorado Reports

<p>Municipal Corporations — Ordinances — Conviction — Commitment — In a prosecution for a violation of a municipal ordinance the defendant may he fined, and committed until the fine is paid. —(2)</p>

<p>Judgment — Lien—Supersedeas, Effect — A creditor having obtained a judgment, and filed in the office of the recorder a transcript of the docket entry, is not under duty to release the lien so-acquired merely because a writ of error to review the judgment has been made a supersedeas. — (3)</p> <p>The supersedeas, like a perfected appeal, merely suspends the judgment. The lien given by the statute is not affected. — (4)</p>

<p>Judgment — Vacating—Excusable Neglect — A party to a cause •which has been set for trial must attend on that day. He is not excused if, relying upon the opinion of some person connected •with the clerk’s office that the cause will not he reached, he absents' himself. — (5)</p> <p>That, in the county court, a cause has been transferred to another judge sitting in the same court, without the knowledge of the party or his counsel, does not change the result. — (6)</p>

<p>1. Quieting Title — Title by Prescription — A title acquired by possession under color of title may be quieted.- — -(7)</p> <p>2. Tax Deed — Effect as Evidence — A tax deed is evidence only of those matters as to which it is declared by the statute to be so. The party relying thereon must show the assessed value of the land, and if that was five hundred dollars or over, that the notice required by the statute (sec. 3902a, 3 Mills’ Stats., Laws 1905, ch. 131, sec. 5, Rev. Stats., sec. 5727), was given; whether the land was vacant or occupied; and if occupied that notice was given to the occupant, as well as to all other persons specified in the statute. — (7, 8)</p>

<p>Writ of Erroi — Dismissal—A perpetual injunction was awarded restraining an alleged unlawful association from doing certain unlawful acts. It appearing by the record that the association was already dissolved by the lapse of the time for which it was formed, a writ of error to review the decree was dismissed. —(10)</p>

<p>Municipal Corporations — Incidental Powers — Under the power to “regulate or prohibit” the sala or giving away of intoxicating liquors, the authorities of a town may prohibit the soliciting of orders therefor. — (11)</p>

<p>1. Municipal Corporations — Ordinances—Adoption—Only one reading of an- ordinance by the town board is required. If, upon such, reading, it receives the required number of votes, it is adopted, though the records show also that it was postponed for a third reading. — (13)</p> <p>2. New Trial — Judgment Not Supported by Evidence — A conviction under a municipal ordinance will be vacated where there is no evidence that the act complained of was committed within the statutory limits. — (13)</p>

Sprigg Shackelford, Judge. At the annual election in November, 1906, one James C. Taylor was elected sheriff of Montrose county for the term of two years, commencing on the second Tuesday of January, 1907. He duly qualified and entered upon the duties of the office, which he continued to perform until the 23d day of November, 1908, when lie died.

<p>1. Evidence — Competency — A verbal contract was concluded between plaintiff and tbe agent of defendant. The two conflicted in their recollection of the transaction. Statements of the agent subsequently made to a third person, touching the agreement, are admissible to corroborate the plaintiff, and sustain her complaint of fraud in the transaction. — (28)</p> <p>In the same case, letters written by defendant to the attorney of the plaintiff, tending to establish the agency of the party who represented defendant, that defendant received the greater part of the money obtained from plaintiff, and that contradictory statements and excuses and false assertions were made by the defendant, were held admissible. — .(28)</p> <p>2. Contracts — Rescission—Fraud—Plaintiff was induced to part with her money upon representations to the effect that she should receive therefor bonds with certain conditions. Bonds afterwards delivered to her were a different class of security, and with different conditions from those which it was represented to her she would receive. Other facts in evidence made it manifest that defendant’s agent had procured plaintiff’s money by representations which the agent knew to be false. Plaintiff having offered to return the bonds sent to her, was entitled to recover the money she had paid. — (30)</p>

<p>1. Will? — Interpretation—Repugnant Clauses — The rule that as between absolutely irreconcilable clauses the last shall prevail, is technical, and to be applied only where all other rules of interpretation fail to disclose the intention of the testator. The will is to be read as a whole, and when it is evident that the testator has failed to express himself as he intended or supposed he had done, and that the defect is one of omission, and it is certain beyond reasonable doubt what the words omitted were, they may be supplied by intendment, even though different opinions' may be entertained, as to which of two or more words of nearly th.e same import were omitted. — (36)</p> <p>2. Wills — Interpretation — Evidence — 'The testator and his wife six months before his death executed a deed to their son conveying real property having a clear rental value of six hundred dollars monthly, but reserving the possession and the rents and profits during the natural life of the two, and the life» of the survivor. The wife had no interest in this property. The value of the estate disposed of, aside from this realty, was between $27,000.00 and $32,000.00. The will was written by the testator himself. He was not learned in the law. It directed the payment of specified legacies amounting to over $15,000.00, the payment of certain small annuities; and, after referring to the deed, the testator bequeathed to the son his watch and diamonds, and followed with a devise to his wife of “all my real estate * * * also all my personal property of every description * * * and she is- to have the free u'se and restriction, possession, control and benefits of the same.” No specific property was charged with the payment of the money legacies- and annuities. Held, upon petition for the interpretation of the will:</p> <p>(1) That the deed was admissible in evidence because referred to in the will, and because it afforded light upon the testator’s idea as to what property he was disposing of. — (35)</p> <p>(2) That, in the general devise to the wife of all his estate, it was evident the testator had no intention to annul the preceding bequests, that the words, “remainder, balance or residue,” were inadvertently omitted and should be read into the will by intendment. — (47)</p>

<p>Appeal from Denver County Court — Hon. Charles E. Southard, Judge.</p>

<p>1. Constitutional Law — Statutes Unconstitutional in Part—</p> <p>The revenue law of 1902 (Laws 1902, ch. 8, sec. 64) imposed an annual license tax on domestic corporations. Sec. 65 of the same act imposed a similar tax, greater in amount, upon “every foreign corporation which has heretofore obtained or shall hereafter obtain" the right to transact business within the state. The latter imposition was held by the supreme court of the United States to he invalid as to corporations previously admitted, as impairing the obligation of a contract. It was contended later that the two sections must stand together and as supplementary each to the other, and that the 64th section would not have been enacted if it had been understood that sec. 65 was inoperative.</p> <p>Held that the repeal and re-enactment of the statute, with a clause saving all accrued penalties (Laws 1907, ch. 211), refuted this contention. — (67)</p> <p>2. Appeal — Nature of — An appeal is a continuation of the action in which the judgment appealed from was rendered. — (67)</p> <p>3. Writ of Error — Nature of — A writ of error is a new suit. — (67)</p> <p>' 4. Corporations — License Tax — A corporation having failed to pay the license tax imposed hy the act of 1902 (Laws 1902, ch. 3, sec. 64), a writ of error sued out by such corporation was dismissed. The statute was held as applicable to a writ of error, as to an action in the inferior, courts. — (67)</p>

<p>1. Evidence — Offer, Part Incompetent — Where an offer of proof is made, only a part of which is competent, the court may properly reject the whole. — (70)</p> <p>2. Evidence — Parol Admissible — A mere receipt of bill of parcels may be explained, and perhaps contradicted, by parol. Not so as to a bill of sale, which defines the rights and liabilities of the parties. — (71)</p> <p>Plaintiff transmitted, with a bill of goods, an invoice as follows: “Photo Jewelry Co. sold to R. M. Davis Ph. Co. — Denver, Colo. Terms net 30 da. Chicago or New York Exchange,” followed by a list of the goods. The invoice was accepted with the goods by defendant, without objection. Held, parol evidence that the goods were ordered and received with the understanding that if defendant should be unable to sell them, it might exchange them for others, was inadmissible. — (70-72)</p>

<p>1. Constitutional Law — A question under the constitution will not be passed upon unless essential to the determination of the case in hand. — (74)</p> <p>2. Taxes — .Assessment — Additions to Schedule — The provision of the statute (Laws 1901, ch. 94, sec. 93) requiring notice to be given by the assessor to a taxpayer, of additions made to a schedule, is substantial and imperative. The omission of the notice is not a mere irregularity. -An addition to the schedule filed by the taxpayer, without giving the notice required by the statute, deprives him of a substantial right, the assessment thereon is void, and the collection of the tax will be enjoined. —(77, 78)</p> <p>The fact that the addition was made at so late a day that the notice could not be given will not excuse the unlawful act of the assessor, where, by the schedule, he was informed that the taxpayer claimed that the moneys in question were, under sec.-14 of the act, not taxable as moneys and credits. — (76)</p> <p>3. Statutes Construed — The statute regulating the collection of a public revenue (Laws 1901, ch. 94, sec. 93) required every citizen to file by a certain date a schedule of his taxable property. It provided that the assessor should, by a certain date, mail to each person whose property had been assessed at a valuation other than that given in the schedule, a statement of the change, and give public notice in at least one newspaper, of a day when objections to the assessment roll would be heard, and that if, upon such hearing, the objections of any taxpayer were overruled by the assessor, an appeal might be taken to the district court or county court. Subsequent sections of the statute ■provided that "No informality in complying with the above requirements shall render the proceedings or the collection of the tax illegal.” (Sec. 122.) That in case of failure by the assessor to assess any property, it lhall be assessed by the treasurer (sec. 125); that the treasurer may insert in the tax warrant any property omitted therefrom (sec. 153); that omissions in any tax roll may be supplied by the assessor or by the treasurer, after its receipt (sec. 175); and by a prior section it was declared (sec. 79) that no failure of the owner to return his property, or procure errors in the assessment to be corrected, and no irregularity, error or omission in the assessment should in any manner affect the legality of any tax levied upon such property. Held that a material addition to the schedule filed by a taxpayer, without the notice required by the section first cited, is not a mere irregularity; that the tax so attempted to be exacted is an illegal imposition, not justified by the other provisions of the statute, and its collection may be enjoined. — (74-78)</p> <p>4. Taxes — Illegal — Injunction — A taxpayer returns the schedule of his property in due season. The assessor makes a material addition thereto without giving him notice as required by the statute. The collection of the tax levied upon the same so added to the schedule will be enjoined. That the taxpayer might obtain relief by application to the board of- c'ounty commissioners, does not deprive him of this right. — (77)</p>

<p> Error to Denver District Court. </p> <p> Appeal from Boulder District Court. </p> <p>Error to Denver District Court — Hon. John I. Mullins, Judge.</p> <p>Appeal from Boulder District Court — Hon. Christian A. Bennett, Judge.</p>

<p>1. Master grid Servant — Contributory Negligence of Servant</p> <p>—An actress, who voluntarily, and without any necessity so to do, takes part in a, boisterous frolic of her fellow actors, cannot complain of her employer if she receives injury therein. By continuing upon the stage while the frolic is in progress with as full knowledge of the danger incident thereto as any person had, when she might have withdrawn, she assumes the risk of injury attendant upon remaining.- — -(112-115)</p> <p>2. Vice-Principal — Fellow Servants — For the acts of the vice-principal within the scope of his employment, and such as properly devolve upon the master in the' duty which he owes to his servants, the master is liable. For such acts as relate to the common employment and are on a level with the acts of his fellow laborers, it is otherwise. The test of liability is the character of the act, rather than the relative rank of the' servants. — (115)</p> <p>3. Liability of Master for Acts of Servant — The master is liable for the acts of the servant only when done within the scope of his employment; and no larger power can be imputed to the servant than the master himself possesses. — (116)</p> <p>A stage manager has no authority to sanction a boisterous frolic among the troop, involving the throwing of missiles, and other riotous and disorderly conduct; and his consent to such conduct does not make the proprietor of the show liable for an injury received by one of the actors who participates in the frolic. — (116)</p>

<p>Appeal from Lake District Court — Hon. George. W. Allen, Judge.</p>

<p>1. Criminal Law — Information—Verification — The affidavit verifying an information as required by Mills’ Stats], sec. 1432h, need only set forth the offense and name of the person or persons accused. It need not set out the mode or manner in which or the means or instance' by which it was accomplished. — (175)</p> <p>An affidavit attached to an information declaring that “the facts stated in the foregoing information are 'true, and the offense charged therein was committed of affiant’s own knowledge,” is as effectual as an averment of the truth of the matters of fact alleged in the information, as though every statement of the information had been embodied in the affidavit. — (176)</p> <p>2. Criminal Law — Corpus Delicti — The corpus delicti, in an accusation of murder, does not include the guilt of the accused or the identity of the murdered person. — (180)</p> <p>Evidence of the finding of a dead body lying upon its face, entirely clothed, buried in the sand and with a wound through the skull which could not have been self-inflicted, establishes the corpus delicti. — (180,181)</p> <p>3. Criminal Law — Circumstantial Evidence — Where, upon an accusation of murder, the corpus delicti is established, the identity of the murdered person and the guilty agency of the accused may be shown by circumstances. — (181)</p> <p>Circumstances in evidence examined and held sufficient to justify a conviction of willful murder. — (181-183)</p> <p>4. Criminal Law — Evidence—Admissibility — An attempted contradiction is properly excluded where it is not made to appear that the two witnesses refer to the same occasion.- — -.(183-184)</p> <p>In the same case it was claimed by the defense that the person alleged to have been assassinated, one McDowell, had, in fact absconded, and the defense offered evidence that, after his disappearance, one Daly had made claim to a horse sold by McDowell before his disappearance, to one Carston. The evidence was offered to establish a motive 'on the part of McDowell to conceal his whereabouts. There being no evidence that McDowell was ever accused of the theft, or that Daly ever asserted any claim to the horSe until after McDowell’s disappearance, the evidence was held irrelevant.- — (184)</p> <p>In the same case the defense, to sustain the same contention, offered to prove that McDowell, in filing upon the claim where he lived, had stated that he only wanted to control the water, that he .“might have to leave in fifteen minutes and light out.” . Held that, not accompanying any act of deceased which it might explain or characterize, the statement was inadmissible. — (185)</p> <p>5. Evidence — Handwriting—Comparison—An expert in handwriting may depose as to the authenticity of the handwriting in question^ though he acquires his knowledge of the writing of the person to whom it is ascribed merely by examination of specimens proven or admitted to be his genuine handwriting, such specimens being produced in court and the witness comparing them and stating his conclusions as to their similarity or dissimilarity. — (191)</p> <p>6. Experts — Qualification—An expert is one having superior knowledge of a subject, acquired by professional, scientific or technical training, or by practical experience. The weight of authority is that the decision of a trial court as to the qualifications of an expert is never reversed except in case of abuse. —(188)</p> <p>7. Expert Evidence on Handwriting — Signature — Comparison — In the same case the authenticity of a hill of sale alleged to have been executed by McDowell, by affixing as his signature “XX,” being in question, it appearing that McDowell uniformly affixed as his signature a mark having many peculiarities and such as to make it well known as his mark, it was held that an expert in handwriting, having compared this with certain checks admittedly subscribed by McDowell, might give an opinion upon the question. The court approved the doctrine of State v. Tice, 30 Ore. 457, 48 Pac. 367, 369, that, “Considering the manner in which marks of persons incapable of writing are usually made by merely touching the pen while the scrivener forms the character, it is doubtful whether any person ought to he allowed to identify such marks as a writing.” — (196,197)</p> <p>8. New Trial — Disqualification of Juror — The finding of the trial court, upon full hearing, that a juror had not disqualified himself by the formation of a previous opinion, will not be reviewed. — (197)</p> <p>9. Presumptions — Of Law and Fact — There is hut one kind of presumption, that" of law. The term “presumption of, fact” is misleading and should be discredited. — White, J. — (199-201)</p> <p>10. Instructions — To Be Construed as a Whole — An instruction that, when a conspiracy is shown beyond a reasonable doubt to exist the acts and statements of one of the conspirators in furtherance of the conspiracy and during its existence, are admissible against the other conspirator, and if against interest, “are presumed in law to be true by reason thereof,” is, standing by itself, fatally erroneous, as invading the province of the jury, but the error is purged by other instructions in which the true rule is plainly stated.— (197-203)</p>

<p>1. Municipal Corporations — Liability for Negligence of Servant — A municipal corporation is not liable for tbe negligence of its servants acting in the performance of governmental and public duties committed to the municipality.</p> <p>Otherwise, where the duty is a private and corporate one. —(212)</p> <p>The storm sewers of a city form part of the improvement of the street. The refuse and offal of the street necessarily accumulate there. The flushing of the sewers is the removal of this unsanitary condition which, in the improvement of the street, the city itself has produced, and a mere detail -in the performance of the general duty of the city to care for its streets. It is therefore a private and corporate duty, and a pedestrian who, without fault upon his part, trips upon the hose stretched across the sidewalk for this purpose, is entitled to an action. — (214, 215)</p> <p>2. Contributory Negligence — In Walking — A pedestrian is not under duty to keep his eyes continually upon the walk before him. • He has a right to assume that the public walk is free from obstructions, and, exercising reasonable 'care, to- act upon this assumption. That the place is much frequented and many persons passing to and fro; that the hose which occasioned the injury was the color of the walk; that the plaintiff’s attention was necessarily diverted at the instant of receiving injury, and that there were circumstances from which it might be inferred that the hose was so manipulated that, without notice to the plaintiff, it was made to strike him, are circumstances to be considered in determining the question of contributory negligence.— (218, 219)</p> <p>3. Negligence — Usage — That a particular method of performing a corporate duty has, without accident or injury to any person, been observed for many years, i-s evidence of due care, its weight varying with the conditions, but does not, as matter of law, exonerate the municipality from the charge of negligence. — (215-217)</p> <p>4. Trials — Question for Court or Jury — Where there is a reasonable doubt as to the inferences to be drawn from the facts in evidence, the question of negligence and contributory negligence must be left to the jury.- — (220)</p>

<p>1. Denver — Powers Under Charter of 1893 — Under the charter of 1893 (Laws 1893, 131), the city of Denver had power to exact a license fee from those engaged in bill posting within the corporate limits. — (224)</p> <p>2. Municipal Ordinances — Unreasonable—A municipal ordinance authorized by specific and definite legislative enactment, and not conflicting with any constitutional provision, will be sustained; but an ordinance which a municipality assumes to pass under,a general grant of authority, or under incidental powers, must be reasonable, fair and impartial,, and not arbitrary or oppressive. — (229)</p> <p>An ordinance prohibiting the erection of a bill board “for advertising purposes, * * * any portion 'of which is within ten feet of any street, avenue or alley line, or which is more than twenty-five feet in length or more than eight feet in height, or within ten feet of any building or structure,” making no restriction as to whether the board is of combustible material, or safe, or sanitary or otherwise, or any prohibition whatever when the structure is not used for advertising purposes, is an unwarranted invasion of private right, though the city had unquestioned power, to prohibit the erection of insecure structures, to require the owners to maintain them in secure and sanitary condition, to provide for their removal at the expense of the owner if unsafe or unsanitary, and to prohibit indecent advertisements or those of immoral tendency, limited by what is reasonable, necessary to prevent the spread of fire, compel the use of incombustible material in such structures, and restrict their size. — (230)</p> <p>3. Municipal Corporations — Delegation of Power — A municipality cannot commit the exercise of its legislative discretion to private persons, nor to the caprice of its officers, nor reserve to itself, in its administrative capacity, an absolute or despotic power to grant or refuse, in particular cases, without reference to any general and duly enacted regulation, a permit to carry on a lawful business. — (235, 236)</p>

<p>Judgment — Conclusive Effect — An action involving the title to certain chattels, then in possession of the sheriff, was dismissed, and the sheriff was ordered to retain custody of* the chattels. Held to conclude the parties and their successors in office, and bar a subsequent replevin by one of the parties against the successor in office of the other.</p>

<p>1. Appeals — r Finding — Insufficient Evidence — Findings of fact upon evidence clearly insufficient, will be set aside. — (246)</p> <p>2. Principal and Agent — Powers of General Manager — The general manager of a corporation operating an irrigating canal has no implied authority to waive performance of an important provision in a contract between his principal and another corporation.- — (247),</p> <p>3. Contracts Construed — Defendant owning an irrigating canal entered into an agreement with plaintiff, a corporation organized for similar purposes, granting the right of using and enjoying its canal for carrying water to any reservoirs constructed along it, with the right to extend it “to such extent as may be requisite to convey water to the lands, canals or reservoirs now owned or hereafter acquired” by plaintiff; and the right of building laterals, branches and extensions to convey water and seepage ■water directly to purchasers from plaintiff. The 8th clause provided that the plaintiff should “complete a system of reservoirs along and under the line of said canal within five years * * * and if, at the termination of said period,” defendant should have “failed to have used said canal for the purposes referred to in this contract, then all the rights and privileges herein mentioned granted by said Canal Company to said Storage Company shall be waived, and this contract shall be void.” By the 9th clause, the parties agreed to “co-operate, to the end that the widest service of the canal, and the storage system shall obtain, and the largest public utility result.” Held, that, whether the 8th clause be construed as a condition precedent, a condition subsequent, or a mere covenant, it was a substantial and essential agreement on the part of the plaintiff, a substantial part of the consideration moving to defendant, and the plaintiff was bound to perform it within the period limited; that, in view of the 9th clause, the circumstance that the system of reservoirs when complete would belong to the plaintiff, and plaintiff would be entitled to all profits of their operation, or that, in view of a change in the situation it appears that the reservoirs would have been unprofitable, will not change the result. — (243-250)</p> <p>■ 4. Contracts — Part Performance — Held, further, that the excavation by plaintiff, at great expense, of what was intended as an extension of the defendant’s canal, but never connected with it, did not excuse the failure to construct the system of reservoirs. — (248)</p> <p>5. Forfeiture — Relief in Equity — Held, further, that the provision of the 8th clause .of the contract not having been waived by the defendant, equity would not restrain defendant from enforcing its rights thereunder; and the fact that the injury occasioned to defendant by the failure to construct the reservoirs would be difficult of ascertainment, affords a substantial reason why equity should not interfere. — (251)</p> <p>6. Estoppel — Held, that defendant’s operation of its canal turning the water into it for supplying the needs of its customers, at a time when defendant was in lawful and exclusive possession, was no estoppel upon defendant to assert its rights, though the effect was to drive out plaintiff’s employees while engaged in the enlargement of the canal, with a view to connect with the new extension, thus preventing the completion of the work until the period limited in the agreement expired, and though two of the fivfe directors of the defendant were aware of the expenditure being made by plaintiff in the extension. —(248)</p>

<p>Criminal Law — Use of Deadly Weapon — Presumption—In a</p> <p>prosecution for an assault with intent to commit murder, the intent is of the gist of the offense, and is to be found by the jury. —(254)</p> <p>To charge that, from the use of a deadly weapon, a presumption of an intent to take life arises, is error. — '(254)</p> <p>It is the exclusive province of the jury to determine the intent of the accused from all the evidence. — (254)</p>

<p>Municipal Corporations — Public Improvements — Special Assessments — An ordinance providing that the council might, by a mere order, require sidewalks to be constructed, in such location, and of such material as should be specified in the order, an order not designating the material of which a walk is to be constructed will not sustain an assessment for its cost. — (256) An ordinance, subsequently passed, providing that sidewalks should be of stone, brick or cement, cannot be invoked to supply the defects of the order. — (256) •</p>

<p>Sale — Delivery—Statute of Frauds — Vendor of goods delivers them to a common carrier consigned to the vendee. They are accepted hy the carrier, loaded into his vehicle, and the carrier’s hill of lading mailed to the consignee. The delivery satisfies the statute of frauds. — (259)</p>

<p>1. Trials — Motion by Both Parties for a Directed Verdict— Effect — When, upon trial before a jury, each of the parties moves for a directed verdict, not requesting the submission of any fact to the jury, the decision of the court has the effect of a general finding in favor of the successful party. The evidence being in conflict, the finding will not he disturbed. — (268)</p> <p>2. Mining Locations — Authority of the State — The state legislature may add to the general requirements of the federal statutes regulating mining locations, regulations not conflicting with the federal statute. The provisions of the state statute requiring the posting of a notice of discovery upon the claim, and the erection of boundary stakes at the angles of a placer, sustained. Nothing in the latter provision conflicts with sec. 2331 of the Revised Statutes of the United States. — (269, 270)</p> <p>3. -Statutory Requirements — The location of a placer in the public domain must, under Mills’ Stats., sec. 3136 (Rev. Stats., see. 4205) mark the boundaries of his ^claim by a stake at each angle, although the location he made upon surveyed lands, and according to the subdivisions of a public survey. — (272)</p> <p>4. -Invalid — Effect—The attempted location of a mining claim in the public domain, one of the essential requirements of the statute not being observed, e. g., the marking of the boundaries, does not confer constructive possession upon the locator. Neither do improvements made under such invalid location. The possession being vacant in fact, a subsequent valid location will be preferred. — (276, 277)</p>

<p>Landlord and Tenant — Eviction—The lease of a public hall provided that the lessee should “at all times conduct the place as a respectable dancing academy, and not tolerate therein improper or disreputable characters.” The defendant having rented the hall to a colored club for a festive occasion, the landlord locked the doors and excluded the colored people, upon the false pretense that, in occupying the hall upon a former occasion, they were under the influence' of liquor, and had conducted themselves improperly, but in fact on the sole ground of their color. The tenant was held entitled to treat this as an eviction, and having given, notice to this effect at once, and abandoned the premises, the landlord’s action for rent was barred.' — (280)</p> <p>The landlord may not repel the tenant’s. claim of án eviction by invoking his own contrary purpose. — (280)</p>

<p>1. Surgeons — Malpractice—A surgeon impliedly contracts with his patient that he possesses, in reasonable degree, the learning and skill ordinarily possessed by others of the profession, and that he will use reasonable and ordinary care and diligence in the exercise of his skill, and the application of his knowledge, to effect a cure, and that he will use his best judgment in deciding upon the nature of the injury and the proper treatment.- — (285, 286)</p> <p>A surgeon who negligently diagnoses and treats as a bruise what is, in fact, a fracture, is liable in damages to his patient. —(286)</p> <p>2. Evidence — Competency—There being evidence from those who had observed an injured limb, shortly after the injury, tending to show that what defendant treated as a bruise was in fact a fracture of a bone, the testimony of a surgeon as to the result of an examination of the limb by him five years later, was competent, in corroboration of the other evidence. — (286, 287)</p> <p>A photograph or sciagraph, taken long after the injury, was held competent. — (287)</p> <p>3. -Damages — Evidence that the injured limb was shorter than the other, though not prima facie evidence of negligence in the surgeon, .was held competent on the question of damages. — (288)</p>

<p>1. Tax Sale — Noncontiguous Lands Sold En Masse — A sale en masse, for taxes, of noncontiguous lands, for a gross sum, is void; and a tax deed which, upon its face, shows that the sale was made in this manner, is void. — (290)</p> <p>The rule is the same, whether the sale be made to the county or to an individual. — (290)</p> <p>2. Void Tax Deed — Limitations—A tax deed void upon its face, does not set in motion the five years statute of limitations (Mills’ Stats., sec. 3904; Rev. Stats., sec. 5733). — (292)</p> <p>Semble, such deed may suffice as color of title under the seven-year limitation. — (293)</p> <p>3. Void Tax Deed — Evidence Aliunde — A tax deed void on its face because showing a fatal irregularity in the conduct of the sale, cannot be supported or validated by evidence aliunde that the sale was conducted in conformity with the statute. — (293, 294)</p> <p>4. Statutes Construed — Sections 3822 and 3888, Mills’ Stats., are to be taken together; several tracts of land can be sold in one body only when adjoining and returned by the same taxpayer. — (291)</p>

<p>1. Appeals — Finding on Conflicting Evidence — A finding of the trial court upon convincing evidence is conclusive upon appeal. — (295)</p> <p>2. New Trial — Neglect—A party who, in an action involving the validity of a lode mining location submits the issues to the judge, without a jury, and, knowing of a condition unfavorable to his contentions, brought about by his adversary, consents that his Honor may view the premises, not asking delay, or opportunity to change the condition, will not he allowed a new trial on account of such conditions or the alleged misconduct of.his adversary. — (296)</p>

<p>1. Trials — Pleading Evidence — Variance — A variance between tbe pleadings and the evidence which, under the circumstances, cannot have misled or surprised the adversary party, or placed him at disadvantage, is not fatal. — (301)</p> <p>2. Contracts — Performance—Reasonable Time — In deciding whether an undertaking has been performed within a reasonable time, the nature of the contract, the diligence used, and the reason of the delay complained of, should be considered. Plaintiff having undertaken to procure the employment of defendant by a lady client of plaintiff, to build for her a house, delay occasioned by the sickness and absence of the lady, and not by any laches of plaintiff, is not to be regarded as unreasonable. —(302)</p> <p>3. Appeals — Finding on Conflicting Evidence — A finding of fact upon conflicting evidence, or evidence from which different conclusions might have been deduced, but supported by substantial testimony, cannot be set aside'. — (303)</p> <p>4. Appeals — Harmless Error — The improper exclusion of testimony is cured by its subsequent admission. — (303)</p> <p>5. Real Estate — Broker—Right to Commissions — One who lists with a broker real estate to be exchanged for other satisfactory property is liable to the broker for his commissions, if the latter procures one who finally accomplishes an exchange with the client, though the client at first reject the proposed exchange. — (304, 3.0.5)</p> <p>6. Evidence — Custom—The ordinary and usual commissions charged hy real estate brokers is competent to show that the commission démanded by the broker in the particular case is reasonable. — (305)</p> <p>7. 'Evidence — Opinions.— Competency — Plaintiff demanded a commission for effecting an exchange of property between defendant and one Lemon. Held, improper to inquire of Lemon whether plaintiff was “in any sense instrumental in bringing about the trade.” — (305)</p>

<p>Bailment — Liability of Bailee — The bailee may not refuse to deliver the bailment to the bailor, upon the plea that another is the true owner, unless he has yielded the goods to such owner; and he has the burden of showing'title in the stranger. — (309) That before the bailor acquired the possession, the goods had been stolen by an unknown thief, from an unknown owner, and that the bailee, by proper inquiry, might have ascertained the facts, is no answer to his demand. — (311)</p>

<p>1. Appeals — Verdict on Conflicting Evidence is conclusive. —(314)</p> <p>2. Evidence — Competency—Admissibility—In a controversy between the vendor and vendee of chattels, the vendor claiming that the vendee is liable for the freight moneys paid by him thereon, bills of lading shown to be those upon which the goods were shipped, are admissible, though not otherwise identified. By whom the papers were executed is wholly'immaterial. — (314)</p> <p>To receive explanation of an indorsement appearing upon a paper already in evidence, is proper. — (315)</p> <p>Plaintiff claiming that certain live stock were sold- to defendant, and defendant, that the sale was not to himself, but to a certain corporation, and plaintiff having testified that he had ■purchased meat at the shop of the corporation, he is not to be asked if the bill was made in the name of defendant.1 — (315, 316)</p> <p>Held competent in the same case to show that defendant made payment for the live stock by the check of such corporation; that the check was signed by defendant as an officer of the corporation, the form of the check, and the manner of keeping the account in the bank, are all immaterial. — (316)</p> <p>Evidence of a sale of the same live stock .to a third person was held irrelevant. — (318)</p> <p>3. Evidence — Order of Proof — To receive in rebuttal matter proper only in chief is not fatal, unless a great abuse of discretion appears. — '(317)</p> <p>4. ' Payment — Acceptance—Effect—Acceptance by the vendor of the agreed price of goods sold, no mention being made of the freight thereon which the purchaser had agreed to pay, is no answer to the vendor’s action for the freight. — (319)</p> <p>5. New Trial — Diligence—Application for a new trial on the ground of newly discovered evidence must show diligence of the moving party in preparing for trial, why the evidence .was not then discovered, how it was discovered, and such facts as acquit the party applying of laches. — (320)</p>

<p>1. Inspection of Mines — The provisions of sec. 364 of the Code apply only where there is a pending suit involving the title to or some interest in the mine. An action by one claiming as a tenant, and demanding damages for a wrongful eviction, is not within its provisions. — (323)</p> <p>Where the plaintiff claims under a lease of only a portion of the mine, an order for the inspection of the whole property is error, unless it is made to appear that an inspection of that part of the mine not included in the lease would afford evidence tending to establish the plaintiff’s demand. — (324)</p> <p>The plaintiff demanding damages ‘ for an - alleged eviction, and averring the extraction and conversion by defendant, since the eviction, of large bodies of valuable ore, and that other like bodies of ore had been left in the mine, to all of which plaintiff was entitled, an order for an inspection with a clause that if inspection were refused the defendant’s evidence should be confined to the period prior to the ouster, unless plaintiff himself should give evidence as to the conditions subsequent to the ouster, was held in error.— (324, 325)</p> <p>And the exclusion, on the ground of disobedience of the order, of evidence on the part of defendant 'tending to show improper mining, by plaintiff, on account of which he was evicted, and large expenditures necessarily made by the defendant, subsequent to the eviction, to restore the mine to proper condition, was error. — (325, 326)</p> <p>2. Evidence — Variance—Allegation of the lease of the whole of a mine, at a specified royalty, is not supported by evidence of a lease of a portion of the mine at a different royalty.' The case exhibits a failure of proofs, and the defendant is entitled to a judgment of nonsuit. — (327)</p> <p>3. Pleadings — Amendment — An amendment of the complaint, after trial, to correspond with the proofs, should be denied where plaintiff’s attention was called.to the variance before and repeatedly during the trial, and he had then assumed the position, and induced the court to rule, that the variance was immaterial. — (327)</p> <p>4. Damages — Profts — 'Evidence — The sole purpose of a lease of mining premises is profit, and in case of a wrongful .eviction the lessee will, on adequate proof, be entitled to what he would have gained by the operation of the mine, if not disturbed. But where, by the plaintiff’s own showing, no profit could have been gained, under the peculiar conditions set down in the lease, as to the removal of the ore, he is not to be allowed anything as for profits lost. — (329-331)</p> <p>Evidence as to profits upon certain ores removed by special permission through a different shaft than that specified in the lease, held incompetent as a basis upon which to compute profits.— (331)</p> <p>The computation of profits, upon the assumption, without evidence, and contrary to all the evidence, that the vein continued, unbroken, regular, and uniform in the quantity and value of the ore, for the distance of 800 to 1,000 feet, from that level to the surface, was improper. — (332)</p> <p>5. Evidence — Presumptions—There is no presumption that a vein exposed hundreds of feet below the surface will be found within the side lines at the surface, and carry, through the intervening space, the same volume and grade of ore. The case of Armstrong v. Lower, 6 Colo. 393, is no authority for such.á presumption. — (332)</p> <p>6. Verdict — Insufficient Evidence — A verdict for substantial damages, without evidence to support it, will be vacated. — (333)</p>

<p>1. Parties — Plaintiffs—Real Party in Interest — The trustee of an express trust in ■ real property may maintain an action to restrain irreparable injury thereto, without setting forth the nature of the trust, the name of the beneficiary or his character as trustee. An averment of his trust capacity may be treated as surplusage. — (338)</p> <p>2. Parties Defendant — Necessary Parties —A nonresident corporation acting through its local manager is charged with a continued invasion of the rights of another in the enjoyment of water. The corporation is not an indispensable party to a bill to restrain the wrong. The resident manager may be made sole defendant. — (341)</p> <p>3. Parties — Bringing in New Parties — A defendant desiring a new party brought, must apply in seasonable time. — (341)</p> <p>4. Injunction — Trespass—A wrongful invasion of the rights of another in respect to the enjoyment of water, e. g., the breaking of the. embankment of a reservoir, and a threatened repetition of the act, or a manifest intention to repeat it, affords ground for equitable relief by injunction. — (344)</p> <p>The- insolvency of the defendant is an additional ground of relief, but not essential.— (344)</p> <p>5. Trial by Jury — Equitable Action — In causes in equity the issues are tried by the court. In the discretion of the court a jury may be called, but the verdict is simply advisory. — (339)</p> <p>6. Appeals — Harmless Error — Sustaining a demurrer to one defense in the answer is harmless, when the same matter is asserted in another, and litigated thereunder. — (340)</p> <p>7. Estoppel — In Pais — Acquiescence of plaintiff in defendant’s expenditure of work for appropriating water from a stream from which plaintiff’s supply is drawn, plaintiff having no notice that a senior and adverse claim is to be asserted, does not work •an estoppel. — (340)</p> <p>8. Continuance — The allowance or refusal of a continuance is discretionary, and, unless the discretion is abused, the action of the trial court will not be reviewed. — (341)</p> <p>The denial of a continuance', applied for only two days before the day appointed for the final hearing, upon the ground that the party was entitled to a jury, and that the regular panel summoned for the term had been discharged, that a nonresident corporation ought to be made party, that a material witness was absent, and that a replication recently filed presented new issues, when, in fact, the cause was of equitable cognizance, the witness actually appeared and was examined at the trial, the replication complained of was withdrawn by the plaintiff, and the rights of the nonresident corporation were well known to the defendant at the institution of the action, will not be reviewed. — (341)</p>

<p>1. Real Estate Broker — Right to Commissions — A broker wbo, without employment or authority to do so, participates in a transaction resulting in the sale of a property, cannot recover commissions. — (349)</p> <p>2. Broker — Evidence of Employment — The mere statement by the owner of real estate, to a broker, of the price at which he is willing to sell it, does not amount to an employment.- — (349)</p> <p>3. Appeals — Finding on Conflicting Evidence — Where a judgment is not supported, or is but slightly supported, by the evidence, or a fact upon which the prevailing party rests her right, must be supported by clear and convincing testimony, and it is not. The judgment will not be permitted to stand.</p> <p>A broker sued for commissions on the sale of real property. Without previous employment he had, by accident, brought the parties together. Held that, under such circumstances, evidence of the employment should be clear and convincing. A judgment founded on the uncorroborated testimony of the plaintiff, contradicted by the defendant, and by circumstances in his own conduct, was reversed.— (350, 351)</p>

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

<p>1. Practice — Motion for Judgment Non-Obstante is not to be interposed by the defendant — (370)</p> <p>2. Negligence — A Question for the Jury — Save where the facts are undisputed and only one inference can be drawn therefrom. — (370)</p> <p>3. Street Railway Companies > — Duty Towards Those Upon the Track — One operating a street railway car must use reasonable care to avoid injury to those upon the street. Seeing one upon or near to the tracks, he is not to rest upon the assumption that the person will turn out in order to avoid the car, for so long a time that it will be impossible to check the car, or 'give effectual warning of its approach in case of necessity. — (376)</p> <p>Hundreds of wheelmen were riding daily between the two tracks of the defendant’s railway. In passing a car they were accustomed to “lay over” to the other track. The motorman saw the deceased riding upon his bicycle between the tracks, two or three hundred feet in advance of him; he could see also a car approaching from' the other direction, and that deceased was “laying over” to avoid this oar, and that he gave no indication that he was aware of the car approaching him from the rear. It was the duty of the motorman to so control his car that it might be speedily brought to a stop. Merely sounding the gong was not sufficient. — (376)</p> <p>4. Contributory Negligence — Travelers on Street Railway Track — It is not negligence per se for a pedestrian, or any traveler using the ordinary means of locomotion, to travel the pub-' lie street between the tracks of the street railway, or to walk or propel himself along or across them; but it is his duty to use reasonable care to avoid injury. — (375)</p> <p>5. Contributory Negligence — When Not a Bar to Recovery— One receiving an injury by the negligence of another is entitled to an action, even though his own negligence contributed -to the injury,.'if the offending party, after becoming aware of the peril of the other, or after, by due care, he could have been cognizant of it, fails to exercise - due care to avoid the injury, and such negligence on his part was the approximate cause of the injury. — (373)</p> <p>6. Appeals — Abstract—The refusal of instructions will not be considered where those given are not set out in the abstract. —(377)</p> <p>7. Harmless Error — Technical errors will not reverse a judgment manifestly correct upon view of all the evidence. — (379)</p> <p>8. Pleading — Evidence—Municipal Ordinance — In an action against a street railway company for negligence in the operation of its cars resulting in the death of a traveler, an ordinance of the municipality is admissible though not pleaded. — (379)</p>

<p>1. Evidence — Hearsay — Declarations of defendant’s manager, made out of the hearing of plaintiff, are not admissible to show collusion between plaintiff and the manager in the execution, in the name of defendant, of a promissory note and mortgage which are the subject-matter of the action.' — (381)</p> <p>2. Corporations — Directors May Act Without Meetings — It seems that the directors of a private corporation may exercise the corporate powers without a formal assembly. In an action to foreclose a corporate mortgage given to secure an indebtedness shown to be bona fide, it appeared that two out of the three directors subscribed the mortgage, one as president and the other as secretary. The third director was consulted and did not object. The authorization was held sufficient. — -(3,81)</p>

<p>1. Directed Verdict — Conflicting Testimony — Where the plaintiff produces substantial testimony fairly tending to establish his contentions, the issue must be left to the jury. Even though such testimony be contradicted, it is error to direct a verdict for the defendant. — (390)</p> <p>2. Decedents’ Estates — Claims—Any claim which could have been enforced against a decedent in his lifetime may be enforced against his estate. — (392)</p> <p>3. Cases Overruled, Distinguished or Explained — The broad doctrine as to what claims may be proven against decedents’ estates, asserted in Lusk v. Patterson, 2 Col. App. 306; Pastorius v. Davis, 9 Col. App: 426; Riner v. Husted’s Estate, 13 Col. App. 523; Currier v. Johnson, 19 Col. App. 245, is modified in U. S. Fidelity Co. v. People, 44 Colo. 557. — (392)</p> <p>4. Principal and Agent — Revocation of Agency — An agency at will may be terminated by the principal at any time before the agent has completed his commission; but if the authority of the agent has been executed in part, and by revocation as to the unexecuted portion of the agency, damage results to the agent, the principal must indemnify him. — (394, 395)</p> <p>5. Statute of Frauds — Agency to Purchase Lands — An agency to negotiate for the purchase of lands need not be evidenced by writing. — (395)</p> <p>6. Contracts — Voidable—Who May Avoid — A contract which is not void and is voidable only because one of the parties thereto is therein acting in hostility 'to 'a duty which he owes to a third person, can be avoided only by such third person.— (396)</p> <p>One who employs a director of a corporation to purchase the corporate property or stock, cannot, in an action by the agent to recover his compensation, object that the director was acting in hostility to the interests of his fiduciaries, the corporation and stockholders. — (396)</p>

<p>1. Judgment Lien — Secret Equities — A judgment .which has been made a lien on the land of the debtor, binds the estate which, by the record, then appears to be vested in him, and is superior to a secret equity of which the creditor has no notice. —(399)</p> <p>2. Notice — Record Recitals — Lands had been conveyed to the wife. Husband and wife, by deed absolute, though intended as security for money, conveyed the lands to a third person with full 'covenants. The grantee afterwards reconveyed to the two, who, during all the time, occupied the premises as their homestead. Held, that a judgment creditor of the husband was entitled to rely upon the assertion of title in the conveyance of the husband and wife, and was not, by the record, chargeable with notice that, in equity, the property belonged to the wife. —(400)</p>

<p>1. Appeals — Motion to Strike Bill of .Exceptions — A motion to strike out the bill of exceptions comes too late after the briefs are filed, and the cause noted for argument. — (403)</p> <p>2. Bill of Exceptions — Requisites — The averment that the bill of exceptions contains all the evidence, is sufficient if it appear in the body of the bill itself; it need not be in the certificate of the*trial judge.- — (403)</p> <p>3. -When Necessary — Complaint of the language of coun-</p> <p>sel in his address to the jury will not be considered unless the bill of exceptions sets forth the language complained of, the objection thereto, and the ruling upon it. The suggestion that the judge presiding at the trial was absent from the court-room during the argument will not receive attention unless this, also, is made to appear by the bill of exceptions. — (404)</p> <p>4. Appeals — Comments of the Court upon the Evidence — Proper comments upon the evidence made by the court in the presence of the jury, in denying a motion for nonsuit, can not be assigned for error, where no application was made to exclude the jury. — (404)</p> <p>5. New Trial — Surprise—The calling in rebuttal by the successful party of a witness to contradict a witness previously examined in chief for the same party, will not be ground to allow a new trial, where surprise is not alleged at the time. — (405)</p> <p>-Newly Discovered Evidence, which, by diligence, would have come to the knowledge of the party before the trial, will not ground an application for a new trial. — (416)</p> <p>6. Evidence — Party Contradicting His- Own Witness — A party may not impeach his own witness, but he may contradict his testimony. — (405)</p> <p>7. Instructions — Objections to — A general exception to the whole of an instruction which contains one sound legal proposition, presents no question upon appeal. — (405)</p> <p>8. Insurance — Application Prepared by Agent of the Insured —False Warranty — The soliciting agent of the insured, in preparing the application for insurance, is regarded as the agent of the insurer, and his knowledge as the knowledge of the insurer. False statements in the application which the agent then knew to be false, cannot be made the ground of a defense to an action on the policy. — (407-411)</p> <p>9. —<—Application—Incomplete or Evasive Answers — Where the insurer accepts an application containing incomplete and evasive answers to a material question therein set down, it will not be heard to deny liability upon the policy, upon the ground of such incompleteness or evasion. — (411, 412)</p> <p>10. Accident Insurance — Change of Occupation — A condition in an accident policy avoiding it, or limiting the recovery, in case the assured is “injured or killed while following any occupation, or in any exposure, or performing acts parallel in hazard to the characteristic acts of any occupation classed by this company as more hazardous,” etc., is effective only where there is a permanent change of occupation. A recovery is not defeated by the circumstance that the assured is injured or killed in performing some individual act, or exposing himself to some particular risk, of greater hazard than that attending his customary occupation upon which the policy was issued. — (413)</p> <p>11. Life or Accident Insurance — Attorney’s Fee — The statute allowing an attorney’s fee to the plaintiff in an action upon a foreign life or accident policy (Laws 1901, ch. 54, sec. 1; Laws 1907, ch. 193, sec. 54; Rev. Stats., sec. 3141) is unconstitutional. — (416)</p> <p>12. Appeals — Partial Error — An error in allowing attorney’s fee to the successful party will not suffice to reverse the judgment. The judgment will 'be modified, rejecting the improper allowance.— (415)</p> <p>13. Constitutional Law — Equal Justice — A statute which imposes an attorney’s fee upon certain foreign corporations, making no such imposition upon like domestic corporations, is void for this discrimination, and because within the inhibition of sec. art. II of the Constitution.— (415, 416)</p> <p>14. Cases Overruled, or Explained — The judgment in American Co. v. The People, 34 Colo. 240, sustaining the tax imposed upon foreign corporations by sec. 65 of the Revenue Act of 1902, overruled. — (416)</p>

<p>1. Railway Company — Duty to Inspect Track — A railway company owes to its servants who opérate its trains the duty to make reasonable inspection and reparation of its tracks. The duty is primary and cannot be delegated. The company is liable to a trainman injured by reason of the defective condition of a switch, which a proper inspection would have disclosed. — (424)</p> <p>2. Master and Servant — Duty of Master as to Number of Servants — It is negligence in the master to employ an insufficient number of servants to- properly and safely perform the work entrusted to them. — (425)</p> <p>3. -Minor Servant Falsifying as to His Age — .Where a minor is employed upon the faith of his false statement that he is of full age, the master owes to him only the same measure of care as to- an adult employe. If injured by conduct of the master which would he negligence as to an adult, he is entitled to an action — (427)</p> <p>4. -Master’s Rules — The rule of a railway company requiring the trainmen to look out for defects in the track does not relieve it of the duty to know the condition of its track, so far as by reasonable diligence possible, nor impose upon the servant the assumption of the risk of injury from the defective condition of the track.- — -(427)</p> <p>5. Appeals — Harmless Error — -To permit a witness to improperly express an opinion where the detail of facts given by the same and other witnesses, justifies the same conclusion, is harmless. — (425)</p> <p>6. -Objection Not Presented Below — The appellant complaining that evidence was improperly received will not be heard to assign grounds of objection not presented at the trial. — (426)</p> <p>7. Experts — Opinions—An expert is not to give an opinion as to the cause of an accident, based upon the conditions existing when he visited the place, such conditions not being the same as those existing at the time of the accident. — (426)</p>

<p>1. Appeals — Findings on Conflicting Evidence — The findings of the trial court upon conflicting evidence are conclusive in the court of review. — (430)</p> <p>2. Limitations; — Color of Title — Good Faith — A deed void for the incompetency of the grantor may be color of title. The insanity of the grantor, even although known to the grantee at the time of accepting the conveyance, is not conclusive of bad faith on the part of the latter. — (430)</p> <p>Where the grantee paid an adequate consideration, was guilty of no imposition, honestly believed that the grantor was competent, and that he was obtaining the title, and followed the acceptance of the deed’ by actual possession and payment cf taxes for the period of the statute, he was held entitled to the protection of the statutory limitation. — (431)</p> <p>3. Cases Overruled, Distinguished or Explained — Gomer v. Chaffee, 6 Colo. 314, distinguished. — (430)</p>

<p>1. Evidence — Order of Proof — The plaintiff in ejectment is not to anticipate the defense, and put in evidence assailing the conveyances under which the defendant is supposed to claim. —(435)</p> <p>2. -Repetition — The court may exclude evidence which is merely in repetition of that already received, and so will unnecessarily encumber the record. — (435)</p> <p>3. ——Party Calling Disqualified Witness — Effect—One who calls a disqualified witness, even for cross-examination under the statute (Laws 1899, ch. 95; Rev. Stats., sec. 7284) waives the disqualification and makes him a witness for all purposes.- — (436)</p> <p>4. -Declarations of Deceased Person Against Interest— In ejectment, the conveyance of a deceased -person being in question, declarations of the decedent in her lifetime were held admissible to sustain the conveyance. — (438)</p> <p>5. Witness — Interest — Defendant in ejectment claimed under a conveyance from the wife of plaintiff, the validity of which was contested. The father of defendant claiming other lands, under a different conveyance contested upon the same grounds asserted in the present action, was held competent. —(437)</p> <p>6. Homestead — What Constitutes — The mere purchase of a residence with intention to make it a home, but without any actual occupancy afterwards, does not constitute the premises a homestead, within the meaning of the exemption law. — (435, 436)</p> <p>7. Instructions are properly refused when bad in part, or given in another form, or when directed to a proposition upon which there is no evidence. — -(433)</p>

<p>This case is ruled by the last preceding case, No. 6197.</p>

<p>1. Corporations — Transfer of Stock — Failure to Register—</p> <p>The transfer of corporate stock binds the administrator of the assignor, even though not registered as required by the statute (Mills’ Stats., sec. 508; Rev. Stats., sec. 870). — (441)</p> <p>2. Statutes Construed — A statute declaring that a transfer of corporate stock not registered in the hooks of the corporation shall not “be valid for any purpose whatever, except to render the person to whom it shall be transferred liable for the debts of the corporation” does not invalidate the transfer as to the assignor or his personal representative. — (441, 442)</p>

<p>1. Pleadings — Amendments—The trial court may, in its discretion, allow an amendment of the complaint upon the trial, without showing of cause prescribed by sec. 75 of the Code. — (444)</p> <p>2. Appeals — Harmless Error — The action of the trial court in allowing an amendment of the complaint will not be reviewed where no prejudice to the defendant appears.' — (444)</p> <p>3. Water Commissioner — Duties—Compensation — It is the duty of the water commissioner to distribute the waters of his district, including those decreed to the reservoirs therein, and he is entitled to compensation for this service. — (445)</p> <p>4. --Certifying the Account of a Deputy — The initials “O.</p> <p>K.” upon the account of the water commissioner’s deputy, followed by his signature and official title, is a sufficient certification, within the requirements of sec. 3437, Rev. Stats. — (445)</p> <p>5. Abbreviations — The courts will interpret, without proof, abbreviations in common use and having a well-defined and generally understood meaning. — (446)</p> <p>The abbreviation “O. K.” imports that the bill upon which it is indorsed is correct. — (446)</p>

<p>Trials Without Jury — Voluntary View by Judge — Where the issue is tried without a jury, it is improper for the judge to after-wards proceed to the scene of the alleged accident, without ihc knowledge or consent of the parties, and from what he there observed, discredit and reject testimony given for one of the parties.</p> <p>The issue is to be determined, in such case, solely upon the testimony submitted. — (448)</p>

<p>1. Contracts — Construction—In interpreting tlie words of a writing, the court should put itself in the 'place of the parties contracting, and-take into view all the circumstances surrounding them at the time of the transaction. — (453)</p> <p>2. Insurance Policy — Construction—A policy of insurance is intended as a contract of indemnity, and will, if the words are susceptible of it, receive a construction effectuating this intention. — (453)</p> <p>3. Evidence — Parol to Explain Writing — The defendant issued a policy of insurance to the amount of $1,400.00 upon plaintiff’s stock of merchandise, and $100.00 upon his office and storeroom furniture, specifically déscribing* the articles, “all while contained in” a certain store building, the street and number of which were set down. Immediately following this was a printed provision that “This policy shall cover all merchandise and goods * * * while located in above described building, vaults, vestibules, under sidewalk or upon sidewalks, in yard, on platform, in rear and alley adjoining the above described building.” In an action upon this policy, the plaintiff demanded the value of agricultural machinery stored in a vacant lot on the opposite side of the street from the store building. It appearing that the plaintiff had no yard immediately adjacent to the store building, it was held admissible to show that he had for many years used the vacant lot in question as a yard, and place for the .storage of agricultural machines and machinery; that defendant had insured-plaintiff during all this time; that defendant’s agents who wrote and delivered the policies listed the property kept in the yard, as insured under such policies, and recognized the vacant lot as the “yard” mentioned in the policy; that everything which the plaintiff possessed at the store building was contained within it; that upon the vacant lot were threshers and engines, which were necessarily left out-of-doors at all times, and that the defendant knew this; that upon the issuance of the policies sued upon, and all precedent policies, the plaintiff had pointed out to defendant’s agents the machines and machinery in the vacant lot as to be insured; and that the policy was delivered with the express agreement that the property in the vacant lot was insured under it.- — (454-456)</p> <p>• 4. Words and Phrases — “Adjoining” construed .to import “near,” “close by,” “neighboring,” or “not far from.” — (456)</p> <p>5. Appeals — Objections Not Taken Below — Objections to a replication as setting up a new cause of action will not be considered, where it does not appear that objection to the pleading upon this ground was urged in the court below. — (456)</p>

<p>Administration — Allowance of Partnership Debt Against Estate of Deceased Partner — A partnership debt is not to be allowed against the estate of a deceased partner where no effort appears to collect of the surviving partner, and no showing is made as to the disposition of the partnership assets or' that there are none. — (460) r</p>

<p>1. Estoppel by Conduct — One who accepts, acts upon, and has the benefit of, a contract entered into with another as agent for a third person, is estopped to question the authority assumed by the agent. The contract merges all prior oral negotiations with the principal relating to the same subject-matter. — (466)</p> <p>2. Evidence — Parol to Vary Writing — An oral statement, as to the effect to be accorded to a written agreement, made by one of the parties, thereto at the time of its execution, is without effect. — (467)</p>

<p>1. Insurance — Application — When Part of* the Policy — Where a policy is issued without any written application, and without any agreement to execute one, and the making of such application is not a condition .precedent to the taking effect of the policy, an. application subsequently delivered by the insured . is no part of the contract. Neither the insurer nor the insured is affected thereby. — (470)</p> <p>In such case, a condition in the policy that it shall be void if the assured fails to build certain chimneys, “within thirty days from date of this application,” is without effect, nor is the application to be referred to, in order to determine the interest of thé assured. — (471, 472)</p> <p>2.. Evidence — Parol Admissible — Subsequent to the issuance of a policy of insurance, an application in writing is transmitted by the insured to the insurer; the assured may, in an action on the policy, under proper allegations, show the attendant circumstances, to establish that he was not hound by the statements contained in the application. — (471)</p> <p>3. Increase of Hazard is a question of fact. If the assured makes this defense it has the burden of proving it. It will not be inferred from the mere fact of additions or improvements to the structure, made subsequent to the issuance of the policy. —(473)</p> <p>4. Insurance — Violation of Conditions — If the insurer would avail himself of the violation of a condition of the policy which avoids it, he must expressly plead the facts relied upon to establish such violation. — (474)</p>

<p>1. Appeals — Finding on Conflicting Evidence — A general finding upon conflicting evidence will not be reversed where supported by ample testimony. — (477)</p> <p>2. Pleading — What Must Be Specially Pleaded — Nonperformance by plaintiff of the contract which he relies upon must be specially pleaded. — (477)</p>

<p>1. Bill of Exceptions — Where Necessary — Rulings of the trial court, not apparent in the record proper, will not be reviewed unless presented by bill of exceptions. But under sec. 60 of the Code, a pleading stricken from the files is still part of the record, and remains in view in determining the effect of a default taken while it remained upon the files, against another than the answering defendant. — (481, 482)</p> <p>2. Default — Irregularity—Effect—To enter the default of a defendant who is only liable secondarily, while the answer of the one primarily liable denying plaintiff’s action, is upon file, is error. — (480)</p>

<p>Error to Denver District Court — Hon. Geo. ~W. Allen, Judge.</p>

<p>1. Writ of Error — Dismissal—A writ of error brought to review a judgment in mandamus directing the delivery of water to the relator, for and during a season which has long since elapsed, will be dismissed without prejudice. A clause of the judgment directing payment into court of a certain royalty, to be delivered to the defendant, upon a condition dependent on the final result, does not affect the question.- — (493)</p> <p>■ 2. Mandamus — When Proper — Defenses—A right asserted to the perpetual use of water for irrigation cannot be established in mandamus proceedings.— (493)</p> <p>Upon proceedings in mandamus instituted to compel an irrigating corporation to furnish water to a consumer at the rate of compensation prescribed by an order of the county commissioners, the defendant may not plead a contract of the relator to pay a greater rate.— (493,494)</p> <p>3. Judgment — Collateral Assault — The order of the board of county commissioners prescribing the rate at which water shall be furnished by an irrigating company, cannot be collaterally assailed or questioned in a proceeding in mandamus, brought to compel obedience to such order.— (494) »</p>

<p>1. Pleading — Complaint — Duplicity — Where in a single count, the plaintiff charges both malicious prosecution and false imprisonment, he may, under a general denial, prove both causes of action.— (500, 501)</p> <p>2. False Imprisonment — Evidence — Responsibility for a wrongful arrest may he shown by circumstances. — (501)'</p> <p>3. False Imprisonment — Ratification—One who, not being responsible for an unlawful arrest upon false charge of crime, being fully informed of circumstances which manifest the innocence of the accused, nevertheless approves the arrest, attempts to' prevent the procuring of bail, and makes a complaint before a magistrate charging the crime, is liable to action for false imprisonment. — (502)</p> <p>4. Joint Wrong-doers — Peace officer, who without warrant arrests an innocent person upon suspicion of a crime, and a private person who afterwards, out of mere malice, lays a false charge of the crime before the magistrate, are joint wrong-doers. The injured person may pursue either or both. — (502)</p> <p>5. Instructions! — To be Read as a Whole — Error in one part of the charge may be cured by what appears elsewhere therein. —(504)</p> <p>6. Appeals — Harmless Error — In an action for malicious prosecution an instruction which assumes, contrary to the fact, that defendant has interposed the plea of justification, is harmless. — (505)</p> <p>So, that the court in its charge, impliedly limited the cause of action to false imprisonment.— (505)</p> <p>So the refusal of an instruction given elsewhere in form more favorable to the defeated party. — (508)</p> <p>And the rejection of immaterial evidence. — (511)</p> <p>7. Malicious Prosecution — Probable Cause — Instructions— The rule that it is the duty of the court to collate the evidence and instruct as to what facts in the particular case constitute' probable cause, has no application where there is no evidence of probable cause. Where all the facts which all the evidence tends to prove do not amount to probable cause the court may instruct accordingly.— (507)</p> <p>8. Evidence — Justice’s Docket — The docket kept by one formerly acting as a justice of the peace, and identified by him, is prima facie evidence of the transactions therein set down, no matter by whom it is produced.— (508)</p> <p>9. False Imprisonment — Evidence to Aggravate Damages— The condition of the jail where plaintiff was incarcerated, and the publication in a newspaper of an account of his arrest, may be shown to aggravate the damages.— (509, 512)</p>

<p>1. Supreme Court — Jurisdiction—An actual controversy is an essential requisite of appellate jurisdiction. It is not within the province of an appellate court to decide abstract or hypothetical questions, upon the determination of which no relief is to 'be granted and no practical result to follow. — '(514)</p> <p>2. Appeals — Dismissal—A decree directed that defendant should deliver water to plaintiff, during a specified season, at the rate of one dollar and twenty-five cents per inch; it was stipulated by the parties that plaintiffs might. deposit in court two dollars for each inch desired during that season, that one dollar and twenty-five cents should be withdrawn by the city, and the residue of the deposit remain to answer the final determination of the cause on appeal. The decree directed that when the judgment became final, by affirmation, or by the failure of the city to prosecute an appeal, seventy-five cents for each inch of water should be refunded to the defendants. Held, that the city, having performed the decree as to the delivery of the water, there remained nothing to appeal from; that jurisdiction would not be retained to determine the right of the plaintiffs to the deposit. The appeal was dismissed without prejudice to the right of the parties to litigate, in other proceedings, the questions presented. — (515)</p>

<p>Error to Larimer District Court — Hon. James E. G-arrigues, Judge. .</p>

Theron Stevens, Judge. This is a proceeding by Peter Vogel, and others like situated, for an order changing the point of diversion up the stream, of certain priorities to the use of water for irrigation drawn from Minnesota creek, awarded to the Clark & Wade ditch, a portion thereof to the Turner ditch, and the balance to the Beaver Dam ditch, the former located a distance of about four miles above the original headgate of the Clark & Wade ditch, and the latter about seven…

<p>Gambling Debt — Payment—Recovery of the Money — The depositary of money misappropriates it to discharge his. losses in g'aming. The one receiving the money had notice of the facts. The depositor may 'recover the money.</p>

<p>Appeal from Denver County Court — lion. John I. Mullins, Judge.</p>

<p>1. Contracts — Interpretation—Conduct of Parties — The conduct of parties to a contract will not be received to contradict and overthrow its plain and unambiguous provisions. — (553)</p> <p>2. -Affecting the Rights of Third Parties — Where the contract affects the rights of third persons, not parties to it, doubted if the conduct of parties to the contract should be received, as against such third parties, to affect its interpretation. — (554)</p> <p>3. -Strict' Construction against Promisor — Doubted if the rule that a contract is taken most strongly against the promisor, should apply, where third parties are interested. — (554)</p> <p>4. Contracts Construed — Covenant of an irrigating corporation' “To supply continuously” to a manufacturing corporation a certain volume of water, through its canal during a certain period in each year, “from such water” as the irrigating company “may be able to lawfully get into its canal or reservoir,” “the maximum quantity to be drawn from said reservoir not to exceed” a specified fraction of the water in the reservoir each year, followed by stipulations relieving the irrigating company from liability for any failure in the supply, accident, or absence of legal capacity to so contract. Held that only the specified fraction of the contents of the reservoir could be withdrawn in each year from the reservoir, or its source of supply, toward satisfying the contract. The irrigating company, on bill brought by those entitled to the, water from the reservoir, for the irrigation of their lands, was restrained from delivering to the manufacturing company, or permitting it 'to receive, from the reservoir, or its source of supply, a greater volume than the stipulated fraction, and from diverting therefrom water that might lawfully be stored in such reservoir. — (554-557)</p>

<p>Appeals — Adjustment by Parties Pending Appeal — Where, pending an appeal, the controversy is adjusted between the parties, and this appears of record, the appeal will be dismissed on motion.</p> <p>Such adjustment, or any matter occurring pending the appeal, which operates to bar the right of review, not appearing of record, must be shown by a plea in bar. — (558)</p>

<p>1. Quieting Title — Tortious Possession — A possession, obtained without violence, or any unfair or corrupt means, even though a trespass, and for the purpose of instituting the action, is sufficient. — (561)</p> <p>2. Pleadings — Matters Occurring After Issue Joined — Matters occurring after issue joined must he presented hy supplemental pleading. Possession assumed hy defendant, pending a hill to quiet title, will not he considered, unless set up by supplemental answer. — (561)</p> <p>3. Patent for Lands — Relation to Entry — The entry of lands in the land office of the United States vests title in the -entry-man. The patent subsequently issued conveys no additional title, but is merely legal evidence of the title acquired hy the entry and purchase.’ — (562, 563)</p> <p>4. Wills — Foreign Probate — An exemplification of the probate of a will in the courts of another state is not admissible to establish title to lands in this state. — (564)</p> <p>5. Tax Title — Tax Deed — Seal—It is a positive requirement of the statute (Mills’ Stats., sec. 3902) that the treasurer’s deed of lands sold for taxes must he attested hy the official or private seal of the treasurer. Without one or the other it is void. — (565)</p> <p>The statute declaring that a seal or scroll shall not be required to the proper execution of the deed of lands (Mills’ Stats., sec. 441, Rev. Stats., sec. 682) applies only to private conveyances. — (566)</p> <p>Note — By the statute now in force (Laws 1902, ch. 3, Rev. Stats., sec. 5730) it is no longer required that the treasurer’s deed shall be under seal.</p> <p>6. Statutes — Implied Repeal — A statute providing that the treasurer’s deed of land sold for taxes' shall be attested by his official or private seal (Mills’ Stats., sec. 3902) is not affected hy subsequent statute relating to conveyances by, private persons and declaring that no seal or scroll shall be necessary (Mills’ Stats., sec. 441, Rev. Stats., sec.-682). — (566)</p> <p>7. Limitations — Void Deed of Land Sold for Taxes — The statute that no action shall lie for the recovery of lands sold for taxes, unless “brought within five years after the execution and delivery of the deed” (Mills’ Stats., sec. 3904, Rev. Stats., sec. 5733) does not bar an action to set aside a tax deed void upon its face. — (567)</p> <p>8. Tax Deed — When Color of Title — Under Mills’ Stats., sec. 3902 (Rev. Stats., sec. 5730), a tax deed does not, until recorded, constitute color of title, so as to set in motion the seven years’ limitation act (Laws 1893, .ch. 118, secs. 6, 7; Rev. Stats., secs. 4089, 4090), nor the five years’ limitation act (Mills’ Stats., sec. 2912, Rev. Stats., sec. 4073). — (568)</p> <p>Where the deed is .void upon its face, neither of these statutes is available as a defense to the action- of one' deducing title from original sources. — (568)</p>

<p>1. Fraudulent Conveyances — Possession of Chattels Retained by Vendor — Under sec. 2027, Mills’ Stats. (Rev. Stats., sec. 2668) a sale of chattels is fraudulent in law, and void as to creditors, unless followed by such a substantial change of possession as affords notice to the community of a change of ownership. A concurrent possession in the vendor and vendee is not permitted. And the case is not taken out of the statute by proving that the sale was, in fact, bona fide. — (571)</p> <p>2. Evidence — Relevancy—In replevin against the sheriff, for goods taken under process against a third person, it is a fatal error to receive evidence that the sheriff is indemnified.— (572)</p>

<p>1. Appeals — Form of Action Not Questioned by Parties— Where no question was made either below or in this court as to the form of the proceeding, the court determined the merits of the controversy, though the proceeding was special under a statute, and a bill in equity should have been presented.— (577)</p> <p>2. Water Rights — Adjudication of Priorities — Application After a General Decree, by Cne Not Party Thereto — It seems that, where a decree has been entered adjudicating priorities in a water district under the statute, the special proceeding authorized by sec. 2421, Mills’ Stats. (Rev. Stats., sec. 3317) is not proper where the petitioner was not a party to the proceeding leading up to the general decree, and the priority, asserted will, if allowed, materially affect and interfere with the priorities awarded by such decree; and see. 2434, Mills’ Stats. (Rev. Stats., sec. 3313') does not authorize it. The proceeding must be by bill in equity. — (576)</p> <p>The proceeding authorized by sec. 2434, Mills’ Stats. (Rev. Stats., see. 3313) is allowed only to those not parties to the original proceeding, or who, if parties, claim a priority junior to all those awarded hy the decree.- — (579)</p> <p>3. -Effe'ct of- Decree — Limitations—The statute contemplates an adjudication of the rights of all persons who claim an appropriation by any means whatsoever, whether by di'tch, canal, reservoir, or otherwise. The proceeding being regular, every inhabitant of the district is charged with notice of it,, and whether he appeared to assert his claim or not, is bound by the decree. — (582)</p> <p>One who is duly served with notice of the proceeding, or appears therein and becomes party thereto, is barred after the lapse of two years. If not duly served, and not appearing, he is barred after the lapse of four years from the entry of the decree, from asserting any claim or priority adverse or contrary to the decree, unless in the meantime he has instituted the proceeding permitted by the statute (Mills’ Stats., sec. 2434, Rev. Stats., sec. 3313). — (583)</p> <p>4. Cases Overruled, Explained or Distinguished — Expressions in the opinions in Greer v. Heiser, 16 Colo. 306, and Nichols v. McIntosh, 19 Colo. 22, inconsistent with what is announced herein, are superseded by previous decisions. — (583)</p>

<p>■\. Railway Company — Duty to Blind Passenger,— Where a railway company accepts as a passenger a blind man who travels without an attendant, knowing his infirmity, it is under duty to exercise at least reasonable care for his safety. The evidence examined, and held to convict the employees of the railway company of negligence, and acquit the passenger of contributory negligence. — (589)</p> <p>2. --Who is a Passenger — According to the course of travel upon defendant’s railway, a sleeping car belonging to the Pullman company was, each day, left at Salida by the westbound train, and taken up by the east-bound train at ten o’clock at night. Passengers arriving at Salida from Ouray and other western stations at 8:30 p. m. were, with the knowledge and approval of defendant, permitted to enter the sleeper .at once. Plaintiff, a blind man traveling upon a through ticket from Ouray to Denver, was at Salida taken by the train porter from the train by which he arrived to the sleeping car. In attempting to enter the sleeper he was, owing to the negligence of the porter of that car, injured. Held, that plaintiff was a passenger, while going from the train to the sleeper and while attempting to enter the sleeper., — -(591, 592)</p> <p>3. --Liability for Negligence of Employees of Sleeping Car — A railway company is liable for the negligence of the employees of another company operating a sleeping car which forms part of its train. — (590)</p> <p>4.--Ticket — Presumptions — In the absence of anything appearing to the contrary a railway ticket is presumed to have been issued for a consideration. One who presents it, and is permitted to travel upon it, must be regarded and treated as a passenger for hire, though he obtained the ticket from another and, .so far as appears, paid nothing for it. — (588)</p>

<p>1. Appeals — Findings of Fact Conclusive — The findings of the court below in a cause heard in open court without a jury-are, if based upon competent evidence, controlling upon appeal. —(594)</p> <p>2. Fraud — Vacating Transaction — A transfer of corporate-stock obtained by a trick will be vacated, upon application of the injured party.— (595)</p> <p>If nothing was paid for such transfer, and everything in fact received by the plaintiff was received upon other and different considerations, nothing need be returned or offered. — (595)</p> <p>3. Evidence — Privilege — Confessions to Priest or Clergyman — Statements' made to a clergyman, not in his professional character, nor in the course of any clerical discipline enjoined by the church, but voluntarily, as if made to any other gentleman, are not privileged under Rev. Stats., sec. 7274, par. 3. — (595)</p>

<p>1. Municipal Corporations — Defective Street — Notice of Injury — Inaccuracy in tlie notice required by sec. 6661, Rev. Stats., not intended to mislead, and which, did not in fact mislead, will not deprive the injured party of his action. The plaintiff may supplement the notice by oral evidence that, an inaccuracy therein as to the place of the injury was promptly called to the attention of the city attorney, and that the city attorney and ■the city engineer examined the street at the place where the accident in fact occurred. — (597)</p> <p>2. -Question for Jury — Whether the notice was intended to or did in fact mislead, is for the jury.— (598)</p>

Greeley W. Whiteord, Judge. This is an action by plaintiffs below, Alfred L. Miller and others, on behalf of themselves and those similarly situated, as creditors of the State Bank of Monte Vista, against the defendants below, appellants here, including the bank itself, Norman H. Chapman, its assignee, and all of the stockholders not theretofore sued in like ground.

<p>1. Jurors — Competency of One Who Served at Former Trial —A juror who served upon the.panel at a former trial, never completed, of the same issue, was called at a second trial and challenged for cause. The court, without deciding the question, suggests that justice would he subserved by allowing the chal- ' lenge. — (614)</p> <p>2. Crimina! Law — Embezzlement'—To sustain a conviction of the crime of embezzlement, it must appear that the accused received the money or property of another as a fiduciary. Merely refusing to pay money lent cannot be converted into embezzlement. — (617)</p> <p>So, where a lady advanced to a man to whom she was engaged in marriage, money for improving, for their joint benefit, lands a part of which were owned by each, and erecting a home thereon for their occupation after marriage, and he appropriated these moneys to his own use, it was held not an embezzlement. — (614-617)</p>

<p>1. Bill of Exceptions — Where Necessary — A criminal conviction will not be reviewed for errors alleged in the charge of the court, or in denying a motion for a new trial, unless presented by a bill of exceptions. — (618)</p> <p>2. Criminal Practice — Jury — Challenging Alternately — In the trial of an indictment for criminal information, the peremptory challenges should be exercised by the people and the accused, alternately. Nicholson’s case, 31 Colo. 53, followed. — (619)</p> <p>3. Evidence — Dying Declarations — The dying declarations of a person whose murder is charged are admissible only when, it appears that they were made at a time when the party was in extremis, and was speaking under the sense of impending dissolution. This may be shown by the circumstances: the party’s declaration, his condition, and the nature and extent of his wounds. The question of the admissibility of the declaration is exclusively for the court. — (620)</p> <p>The deceased had received a mortal wound. A physician was called immediately. Soon after his arrival the wounded man declared to him that he “was done for.” He repeated similar expressions afterwards, to others, and at no time expressed any hope of recovery. His declaration, made while in this condition, that the prisoner had shot him without provocation was held properly received.— (621-623)</p>