Volume 58 — Colorado Reports

<p>T. Constitutional Law — Municipal Corporations Contributing to Private Enterprise. — On May 20th, A. D. 1913, the City and County of Denver adopted an amendment to their charter (§ 355)-, providing for the creation of a Tunnel Commission, with authority to construct or assist in the construction of a tunnel through the main range of the Roclcy Mountains for the transportation of freight, passengers, water, and electricity, and with power to enter into contracts with individuals or corporations for the construction, control and management of t]ie tunnel, and for the future lease, sale or disposition thereof; providing for the issue of Bonds by the municipality in '$3,000,000 to assist in the expense, and for the annual levy of a tax sufficient for the creation of a sinking fund to discharge such bonds at maturity. Later the Tunnel Commission entered into a contract with a railway company for the construction and equipment of a. tunnel, and its approaches, for railway transportation purposes, at the estimated cost of $4,500,000, and ready for the installation .by the city of facilities for the transportation through the tunnel of water and electricity; the actual cost of the construction of the tunnel to be paid in the proportion of one-third by the railway company, and two-thirds by the city; the railway company paying the annual interest on the bonds of the city, and the entire cost of maintenance, equipment and operation of the tunnel; that other railway companies might use the tunnel and its approaches upon certain terms set down in the contract; and finally for the sale of the tunnel by the city to the railway company, reserving the perpetual right to its use, for the transportation of water and electricity only.</p> <p>Among other stipulations was a provision conferring upon the city the exclusive right, in perpetuity, to construct and operate, through the tunnel, an acqueduct or pipe-line etc. for conveying water for use by the City and its inhabitants, from the western to the eastern portal thereof, and the right to extend through the tunnel, cables, wires, and other apparatus, for conveying electricity to be used by the city, for power, light and other purposes.</p> <p>On bill brought by a taxpayer, the amendment of the charter, and the contract pursuant thereto, were held clearly in violation of §§ 1 and 2 of Art. XI of the Constitution, (1) in pledging the credit of the city in aid of a private corporation, (2) in creating a partnership between the city and the railway company; that the reservations in favor of the city had not the effect to change the character of the proposed enterprise in this respect, or relieve it of its infirmities; (3) that the reservation to the city of the right to operate an acqueduct or pipe-line for conveying water from the western to the eastern portal of the tunnel was a mere easement, which the city had no means or right to enjoy, having no water or right to water to be so conveyed; (4) that the reservation of the right to bring electricity was without value, since the electrical current might be obtained elsewhere for a comparatively insignificant sum; (5,) that the reservation of the city of the title to all mineral veins discovered was unlawful, in that the city has no power to tax its inhabitants to promote a prospecting contract; that what the reservation contemplated is not within municipal powers; (6) that the reservation to other companies of the right to enjoy the tunnel is within the constitutional prohibition, in that the city has no more power to extend its credit in aid of two or more railroads than one; and because further, the contract provides that the railroad company with which the contract was made should be entitled to exact from every other railway company, desiring to use the tunnel a yearly charge during the fifty years of the life of the contract for its own use, as a condition precedent. (14-33)</p> <p>Held further, that the contract was invalidated by the provision for the sale of the tunnel by the city to the railway company; that it is not within the ordinary powers of a municipal corporation to construct an improvement, convenience, or necessity, with the avowed purpose to dispose of the same, or an interest therein, to a private person or corporation. Denver v. Hallett, 34 Colo. 393, distinguished. (34)</p> <p>2. -Will of the People. Where a municipal corporation is proposing to enter into a contract prohibited by the Constitution, the fact that both the legal voters, and the tax payers of the community, have expressed themselves in unmistakable terms, in favor of the project, is of no moment. (24) '</p> <p>And the express declaration in the charter amendment, that the project proposed “will be of local use and convenience to the public, and is essential to the future growth of the city” is equally to be disregarded. (26)</p> <p>3. -Article XX — § 1, contains no repeal of the limitation upon the powers of the municipal corporations prescribed by §§ 1 and 2 of Art. XI. (26)</p> <p>4. Contract — Construed—Option—An agreement by one party to sell; and the other to buy, a particular property for an agreed price is not an option but an executed contract. (28)</p>

<p>Error to Denver District Court.—Hon. Harry C. Riddle, Judge.</p>

<p>1. Public Service Corporations — Rules—Regulations—Discriminations. ■ A public service corporation is under duty to render equal service to all, without discrimination as to rates or facilities. Even a contract to render service to a particular patron, at a particular rate of compensation, valid when made, will not justify a continuance of the service at the agreed rate, when, subsequently a higher rate is prescribed to and exacted from the public. (62, 63)</p> <p>2. --Legislative Control. The rates exacted by a public service corporation are subject to legislative regulation. (62)</p> <p>The courts have no authority to prescribe rates for the service. (65)</p> <p>3. Telephone Companies — Duty to the Public. Telephone companies are under duty to extend to all their patrons the same service, and at the same rates where the conditions are the same.</p> <p>Every citizen of the community where such a company operates is entitled to have a telephone instrument installed in his premises, and to receive the same service, at the same rates as others, under similar conditions; and this right does not depend upon contract, but upon the fact that the company is a public service corporation, and owes the same service, at the same reasonable rate, to every member of the community. (63)</p> <p>4. --Douse Service — Business Service. There is a difference in the value of the telephone service rendered to premises occupied merely as a residence, and premises occupied for business, and a reasonable difference may be made in the rate charged. A contract to render telephone service to a residence will not entitle the citizen to the installation of an instrument in a new place of residence, where it is to be devoted to carrying on business. (62, 63)</p> <p>5. Specific Pekfokmance — Revocable Contract: Equity never interferes to enforce a contract where the party sought to be charged has reserved to himself, or the.daw confers upon him, the right of revocation. (64)</p> <p>The contract of a public service corporation to render service to a particular patron at a particular rate for a'specified time, is within the rule; because no public service corporation can lawfully enter into such a contract. (64, 65) '</p>

<p>1. County Boundaries — How Established? only by statute, not by the acts or omissions of the county officials. (72)</p> <p>2. -Proceeding to Establish, an Action. The State Engineer having, under Rev. Stat. Sec. 1162 established'the boundary between contiguous counties, a proceeding instituted by one of them, under the statute, to -correct alleged errors of the State Engineer, is an equitable action, and not a special proceeding. (69)</p> <p>3. -Change of Venue. No jury being required, the county defendant is not entitled to a change of venue on account of the prejudice of the inhabitants of the county plaintiff, in which the action is instituted. (69, 70) '</p> <p>4. Pleading — Separate Causes of Action.' The denial of a motion to require the separate statement, is error. (71)</p> <p>5. -Construed. A complaint setting forth (1) The establishment of a county line by the State Engineer, and that the plaintiff county is dissatisfied therewith, (2) The long, recognition by both counties and the inhabitants and officials thereof, of the particular line for which the plaintiff contends, contains two separate causes of action, one the action authorized by the statute, and the other an attempt to set up an estoppel. (70, 71.)’</p> <p>6. Appeal and Error — Trial by Court — Incompetent Evidence Admitted — Presumption that the court in its findings rejected it, will not be indulged, where, from its rulings upon the pleadings it appears that the court misconceived the law, it being impossible in such case for the court of review to say that the findings below were not founded upon the evidence improperly received. (73, 74)</p>

<p>1. Bank — Officer Applying the Funds of the Bank to his Private Debt. An agent has no authority to apply the funds of his principal to his private obligations. No more has the officer of a hank. He has charge of the funds of the hank as trustee for the stockholders and creditors of the institution. (79)</p> <p>A creditor of an official of a hank, receiving in payment of his demand a draft or other obligation of the hank, showing upon its face that it is issued by such official, is advised thereby of the improper appropriation of the funds of the bank, so. attempted. The paper is void in his hands, and if he obtains the money upon it he is liable therefor to the bank, or the receiver of the bank, unless he can show that the act was authorized by the proper authorities of the bank, or that they afterwards ratified it. (79)</p> <p>The fact that the official of the bank, in such case is the owner of the whole stock thereof, conducts all its business and is not subordinate to any superior authority in the premises is unimportant. '(79', 80)</p> <p>2. Estoppel — By Conduct — Ratification. Bowlds bought the whole issue of stock of a bank and assumed control of its business. He pledged certain shares to another bank to secure a loan. Subsequently, having, no funds at all in the bank and being, indebted to plaintiff, he drew a draft in the name of the bank for a portion of the debt, and a certificate of deposit for the residue. No other officer of the bank knew of the transaction. Plaintiff collected the draft, and shortly thereafter the bank failed, and its affairs passed into the hands of a receiver, the loan from the other bank remaining unpaid. Held, that the failure of the bank, while so under the control of Bowlds, to repudiate the transaction, raised no estoppel either upon the bank or the receiver. Judgment in favor of the receiver for the amount of the draft, and disallowing the certificate of deposit as a claim against him. Affirmed. (79, 80)</p>

<p>1. Replevin — Effect of Verdict. A verdict for the plaintiff fixing the total value of the goods, not valuing any item separately, is conclusive upon the defendant, and his surety in the redelivery bond. (85)</p> <p>-2. -Re-Delivery Bond, executed by defendant, who by force thereof, under the statute, has return of the goods, is not satisfied by the delivery and acceptance of part of the goods in damaged condition. (85)</p> <p>The whole of the chattels must be surrendered in like good order and condition as when replevined. (85)</p> <p>3. -Parties — Dismissal of One Defendant, in replevin, does not discharge the surety in the re-delivery bond. (86)</p>

<p>1. Pleadings — Complaint—Separate Causes of Action. The complaint of the Attorney General filed in May, 1910, demanded of the defendant corporation, in one count, the license tax for seven successive years, and the penalty prescribed by law for the non-payment of the tax. Held that the tax for each year, and the penalty thereon, constituted a separate cause of action. (89)</p> <p>2. -Failure to Separately State Separate Causes of Action. Remedy, is by motion, not a demurrer for misjoinder of causes of action. (96)</p> <p>3. -Joinder of Causes of Action. A single action lies to recover from a corporation the annual license tax prescribed by statute for several years. Or several promissory notes. (96)</p> <p>4. Legislature — Call for Special Session, Construed. Tbe call for tbe special session of tbe general assembly of 1902 specified, among other subjects to which the assembly were required to direct their attention (1) To enact a revenue law providing for the assessment of property for taxation, and the levy and collection of taxes. (3) To enact any and all legislation relating to or in any wise affecting corporations. Held that the provisions'of chapter 3 of the laws of that session imposing a special license tax upon certain corporations, and a penalty for its non-payment, was within the call, following Parsons v. People 32 Colo. 221. (90)</p> <p>5. Action — When an Action Lies — Special Remedy by Statute. Section 64 of c 3 of the Acts of 1902 imposes a license tax upon certain corporations and sec. 68 prescribes a penalty for the non-payment of the tax. Held that although the statute also provides that every corporation defaulting shall forfeit its right to do business until the tax is paid, the state may maintain an action.for the tax, and the penalty. — Montezuma Co. v. Bell, 20 Colo. Distinguished. (90)</p> <p>6. Corporations — Failure to Pay License Tax — From what Date Penalty Computed. The penalty prescribed by sec. 68 of c. 3 of the laws of 1902, for the non-payment of the tax imposed by the statute is computed from the date of the notice given after the tax becomes due. (97)</p> <p>A complaint for the penalty must aver such notice and the day upon which it was given. (97)</p> <p>No notice is required under c. 211 of the Acts of 1907. (97)</p> <p>7. -Continuing to do Business after Failure to Pay the Licence Tax, is liable for the tax and the penalty for its non-payment, during the period of so continuing, business. Semble if after the first default it had ceased to do business it might be otherwise. (93)</p> <p>8. Limitations — Action by State for Penalty. An action-by tbe State against a private corporation to recover the penalty prescribed by statute for the non-payment of a tax is not within Rev. Stat. Sec. 4068, barring an action for a penalty begun more than a year after the offense is committed. (93, 94)</p>

<p>Error to Denver District Court.—Hon. Charles C. Butler, Judge.</p>

<p>1. Elections — Political Party — Statute Construed. In common use the phrase “political party” is synonomous with political organization; hut the legislature by c. 4 of the laws of 1910 make a marked distinction between them. An association of electors, who, by petition, place upon the official ballot, individual nominees for public office are a “political organization,” even though this is not their intention. To become a political party it must participate in the election, and its candidate for governor must receive at least 10 per cent of the total vote cast at such election. (108, 109)</p> <p>A political party cannot nominate by petition, nor can a political organization, so nominating, adopt any portion of the name of a political party then existing. (109)</p> <p>2. -How the Percent of the Vote is to he. Ascertained. Distinct political organizations, under different names, presented the same gentleman as their candidate for governor. One of these was denominated the Progressive Party. On application to the Election Commission of Denver by those claiming this title, to accept and use in the appointment of judges and registrars, at the next succeeding election, certain electors nominated by them; held that the votes cast by all these several organizations for the same candidate, were not to be considered as cast by the Progressive Party. The right of the relator it was said is not conditioned upon the number of votes which its candidate received, but upon the number which his organization cast. (110)</p> <p>And evidence that the several different organizations, so voting for the same person, were but one organization, under different names, was held inadmissible. (111, 112)</p> <p>A political organization is, under the statute, a distinct entity which can neither coalesce with another, nor lose its identity therein by the mere fact that its candidates, principles, and management are the same. (111)</p>

<p>1. Ejectment — Title. The legal title prevails where no issue of equitable cognizance is tendered. (122)</p> <p>2. Trusts — Statute of Uses — Operation. The statute of uses has no effect upon implied, resulting, or constructive trusts, but solely upon dry, naked or passive trusts created by the parties, and disclosed by the terms of the conveyance. It has no application to a conveyance which transfers land to parties designated as trustees, but in which the trust is not defined, nor the beneficiary named. (122)</p> <p>Teller v. Hill 18 Col. App. 509, distinguished. (123, 124)</p> <p>And the statute has not the effect to vest title in one having a contingent interest, dependent upon a condition never performed. (129)</p> <p>3. Execution — What Interest in Lands Liable. Any interest in lands, legal or equitable, may be sold upon execution (Rev. Stat. sec. 3609). (131)</p> <p>No rule of law or morals prevents the creditor from levying his execution upon any lands in which he even suspects the debtor to have an interest, and proceeding to the sale thereof. (131, 132)</p> <p>The creditor may levy upon and sell lands where another claims an interest, in which he himself already has an interest, or even the whole title. (132)</p> <p>4. -What the Purchaser Acquires — Duty of Purchaser. One contemplating the purchase of lands upon execution sale is under duty to make diligent inquiry as to the title of the execution defendant.</p> <p>The maxim caveat emptor applies; the purchaser takes whatever interest in the lands the debtor has, and only'that interest. (132)</p> <p>5. -Effect of Levy as to Creditor. The levy of an execution upon lands is not a warranty nor even a declaration that the defendant in execution has title to the lands or any interest therein. (133)</p> <p>6. Estoppel — By Conduct. One who having title to lands, causes the same to he sold on execution as the property of another, who claims an interest therein, and becomes the purchaser at the sale is not, merely by such conduct, not having made any representation or done any act to influence other creditors, estopped to assert his title as against another judgment creditor, who redeems from such sale, causes the lands to be sold on his execution, pursuant to such redemption, and procures the conveyance of the sheriff; and this even though he receives and retains the redemption money. (133)</p> <p>7. Equity — Jurisdiction. It seems that where lands are conveyed to one as trustee, the conveyance not defining the trust, or naming the beneficiary, a court of equity may by its decree supply the defects of the conveyance.. (129)</p> <p>8. Evidence — Parol Admissible, in an equity suit to establish and define the trust, and identify the beneficiary, in a conveyance of lands to one named as trustee merely. (129)</p>

<p>1. Fraudulent Conveyances — Creditor’s Bill — Requisites. A bill brought by one who at execution sale has purchased lands of his debtor, to vacate a previous conveyance by the debtor, as fraudulent, must, as against the alleged grantee in fraud, affirmatively allege the insolvency of the debtor, or that he had no other property than the lands in question from which the judgment might have been satisfied. (142)</p> <p>2. -Statute Construed. Section 2665 of the Revised Statutes relates to personal property exclusively. (144)</p> <p>Under Rev. Stat. Sec. 2674 the question of fraudulent intent is one of fact. Although it appeared by the pleadings that the grantor in the alleged fraudulent conveyance reserved to herself a beneficial interest in the property, it was held that the conveyance was not to be adjudged fraudulent in law. (144)</p> <p>3. Pleadings — Motion for Judgment Upon. On plaintiff’s motion for judgment on the pleadings the averments of the answer are taken as true, ’ and if these raise a material issue of fact the motion must be denied. The motion cannot be made to serve the purpose of a general demurrer. Benson v. Hoover 3 Col. Ap. 467, Rensberger v. Britton 31 Colo. 77, Borcherdt v. Favor 16 Col. Ap. 406, distinguished. (142) - !</p> <p>4." Pasties —Necessary 'Defendants. Upon bill to vacate a conveyance of lands as fraudulent one alleged to have an interest as beneficiary in a trust under the conveyance, is a necessary party. (145)</p>

<p>Judgment predicated upon finding of facts not supported by any testimony reversed.</p>

<p>1. Pleadings — Irrelevant Answer, may be stricken from the files on motion. Rev. Code Sec. 66. (150)</p> <p>2. Equitable Lien — When Allowed. One who having entered into an agreement with an agent for the purchase of the lands of his principal, submits to • the repudiation thereof by the principal, and, treating the contract as broken, abandons his right to consummate the purchase, is not entitled to an equitable lien for the damages occasioned by the loss of his bargain, or moneys expended by him in preparing, before the repudiation of the contract, to perform it, even though the principal has no property except the lands, and is proposing and attempting to dispose thereof. (151, 153)</p>

<p>1. Statutes — Repeals by Implication, are regarded with high disfavor, especially .when the statute alleged to have been repealed was founded in experience, and grave considerations of public welfare. (159, 160)</p> <p>A statute without negative words will not repeal existing legislation unless there is an unavoidable repugnancy. (159)</p> <p>A statute enacted in 1887 allowed a writ of error at any time within three years from the date of the judgment (Rev. Code. Sec. 436). This statute remained in force, applicable to all manner of causes, until 1893. A statute enacted in that year limited the time for suing out a writ of error to review a decree of divorce to six months (Rev. Stat. Sec. 2123). By Sec. 8 c. 6 of the Laws of 1911, (an Act revising the law relating to appeals and writs of error,) it was again provided that “A writ of error shall not be sued out after the expiration of three years” from the date of the judgment, and all acts and parts of acts “inconsistent herewith” were repealed. Held the latter statute had not the effect to repeal Rev. Stat. Sec. 2123. (159)</p> <p>2. Degree — Relates to Pronouncement. The formal entry of a decree is a purely clerical matter. Whenever done in conformity with the original pronouncement it relates back thereto, and it is not improper to expressly declare that it is done as of such former date. (160)</p> <p>3. Limitation — How Pleaded. A writ of error sued out after the lapse of the statutory limitation may be dismissed on motion. (155, 161)</p>

<p>1. Negligence — Not Contributing to the Injury, is not actionable, e. g. the failure of the proprietor of a coal mine to provide the metal tube prescribed by Rev. Stat. Sec. 640, where this omission had nothing to do with the injury complained of. (165)</p> <p>2. Instructions — As to Collateral Matter not in Issue, tending to mislead and confuse the jury, disapproved. (165)</p>

<p>1. Husband and Wife — Separation Agreement, does not deprive the wife of her right to the separate allowance provided by Rev. Stat. Sec. 7223, where such agreement contains no express renunciation thereof. (170)-</p> <p>The right of the widow cannot be taken away by presumption or construction. (171)</p> <p>Semite, a common law marriage entitles the widow to the allowance. (169)</p> <p>2. Executor — Power of the Court to Refuse Letters Testamentary. The law is a jealous guardian of the estates of deceased persons, and when the appointment of the executor, named in the will of the decedent may endanger the estate, or lead to embarassment in the administration, it is within the power of the court, and is its clear duty, to commit administration to another, e. g. where the-executrix is bitterly hostile to the insane widow, and the estate is hardly of sufficient value to discharge the widow’s allowance, and pay the debts of the deceased the appointment, as administrator, of the conservator of the insane widow, a man of high character, and a long-time friend of the parties, approved, as warranted by Rev. Stat. 7111. (171, 172)</p>

<p>1. Appeals and Error — Abstract. Where the abstract is so defective as to afford no comprehensive idea of what is in controversy the court may decline to review the judgment. (173)</p> <p>2. Statute of Limitations — Evidence. Evidence of a claim barred by the Statute of Limitations held properly excluded. (174)</p>

<p>Error to Lake District Court.—Hon. Charles Cavender, Judge.</p>

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

<p>Judgment reversed on the authority of Comstock v. Larimer & Weld Company No. 7582, post, 186.</p>

<p>1. Pleadings — Construed. The complaint, of a reservoir company, filed in October, set forth that plaintiff was entitled by certain adjudication decrees to divert water from the Cache la Poudre River, in Water District No. 3, for storage; that large volumes of water were passing the head-gate of its inlet canal; that the water was not needed for direct irrigation, either in District No. 3 or elsewhere; but that the, official defendants, the State Engineer, the Division Engineer, and the Water Commissioner, under an order of the Division Engineer promulgated in the preceding, May and reiterated on the first of September, were refusing to permit plaintiff to divert water from the stream for storage; that in Water 'District No. 3, for more than twenty years, the use of water for direct irrigation terminated about the 15th of September in each year, and all rights of appropriators for any purpose other than storage ceased and determined at the date named, until the following April; that the acts of the defendants were unlawful, unwarranted, and in violation of plaintiffs decreed rights; that the order complained of was uncalled for, and an assumption on the part of defendant officials, of an authority not conferred upon them by law, and- that the use of water contemplated by the order would he mere waste, and contrary to law; praying an injunction to restrain these officials from enforcing the order in question, and for a decree that in Water District No. 3 the period for direct irrigation commences upon April 15th in each year, and extends to September 15th, and the period for storage of water commences on the 15th of September in each year, extending to April 15th of the following year. Held that the object of the action was to obtain the relief demanded by the special prayer, and not to suppress waste or promote economy in the use of water. Held further that the complaint failed to show, by any averment of fact that the water officials were acting beyond or contrary to the authority conferred upon them by law, or that the plaintiffs had any right superior to that of the appropriators for direct irrigation, in the same district. (189, 190, 192, 197, 205)</p> <p>2. -Complaint in Controversies as to the Use of Water. Where one claiming the right to water for storage seeks to restrain its application to direct irrigation it is not sufficient to aver merely an appropriation for storage, and a decree establishing the right. The' complaint must go further and show that the plaintiff’s right is relatively prior to that asserted by those against whom the relief is sought. (197)</p> <p>3. Parties — In Equity — Indispensable. Plaintiff claiming to be entitled to the waters of a certain stream, for storage, between certain dates, brought an action to restrain the officials of the water service from enforcing an order of the Division Engineer which required the Water Commissioner of the district to cease the storing of water, during the same period. Held that the appropriators for direct irrigation in other districts of the division would, of necessity, he affected by the decree and were indispensable parties. (193, 194)</p> <p>4. Irrigation — Irrigating and Non-Irrigating Seasons. The division of the year into two distinct seasons, during one of which the waters of a certain district are to be used for direct irrigation, and during the other of which they are to be stored, is in conflict with statutory provisions regulating the distribution of water, and with the thoroughly established doctrine that preference to the use of water depends upon prior appropriation, and the necessities of the consumer. (195)</p> <p>Where decrees have established the right and priority of appropriators for irrigation, or other purpose, without limitation as to the time of use, the courts have no power to invade the right so conferred, by prescribing times and seasons during which it shall be enjoyed.</p> <p>The inconveniences, difficulties and controversies which must result from any such division the year, enlarged upon. (203, 204)</p> <p>5. ——Distribution of Water, is to be made throughout the_ irrigation division, according to priorities, and not for a single district. (194)</p> <p>6. -Waste in the Use of Water, is to be restrained by proceedings against the offending parties only. (205)</p> <p>7. -The Right to the Use of Water, depends upon the needs of the appropriator. He is not permitted to apply water to his land unnecessarily, or in such volume as to amount to waste.</p> <p>In this respect the law makes no distinction between appropriators for irrigation, for domestic use, or for power. As to all these purposes, where a valid appropriation is made, the right is limited only by the law of necessity. (20B, 204)</p> <p>8. Custom — Unlawful. A custom established in a particular water district, that water shall be employed for direct irrigation only during a particular season of the year is contrary to statute and binds neither the water officials nor consumers from, the same stream in other districts. (200)</p>

<p>Contbacts — Construed. Plaintiff, an architect, was employed by a corporation to prepare plans and specifications for remodeling a building, in order to convert the same into a theatre. A contract in writing was entered into, fixing the architect’s duties and compensation. It was afterwards discovered that the proposed transformation was impracticable. New parties became interested in the enterprise, and a new corporation was organized. The building w’as torn down and a new one erected. The architect was continued in charge of the work until its completion, with the understanding that he was acting under the original employment. Held that the original contract establishing, the architect’s compensation and was properly received for that .purpose.</p>

<p>1. Venue — Change of Venue — Time of Application — Waiver. The right to change the venue of an action brought in a county other than that prescribed by the statute is a mere personal privilege, and ordinarily is considered as waived by a general appearance and an answer to the merits; or if the application is not interposed in apt time. (214)</p> <p>Summons was served on defendant on July 2nd; August 15th he filed a demurrer to the complaint; November 5th an amended- complaint was filed; on the 11th of January following defendant filed his answer'thereto and on March 30th, his motion for a change of venue. Held not in apt time. (214)</p> <p>2. Pleadings — Judgment Upon, is not to be granted when the defect complained of is one which may be cured by amendment. (215)</p> <p>3. -Amendments — Discretion of the Court. Amendments, and the time they may be filed, are largely in the discretion of the trial court. (215)</p> <p>4. -Hew Cause of Action. The original complaint alleged the sale by plaintiff to defendant of an auto ear, and that plaintiff, upon defendant’s paying therefor on delivery, would accept in part payment a certain second hand car. An amended complaint made no allusion to the second hand car. The answer set forth the agreement as to this car, and claimed a credit therefor. An amended reply admitted the agreement, but alleged that it was upon condition that defendant should pay the residue of the purchase price of the car sold, by a certain day, and that this condition was not complied with.</p> <p>In the same case the original reply admitted a defect in the car sold, which plaintiff promptly replaced and corrected. The amended replication omitted this admission and averred that the car sold was perfect in all its parts.</p> <p>The court declined to say, in either case, that the amendment stated a new cause of action, or was a departure.</p> <p>5. -Matter not Alleged. A fact nowhere alleged in the pleadings is not to he invoiced to discredit the findings. (219)</p> <p>6. Bill of Exceptions — When Necessary. There being no bill of exceptions the court declined to say that the trial court abused its discretion in allowing an amendment of the reply during the trial. (215)</p> <p>Prejudice of the trial judge was relied upon as ground of a motion for a new trial, and an affidavit setting up a conversation' occurring during the trial, in which his honor presiding exhibited temper, was relied upon to establish this prejudice. The court declined, upon this partial showing of the occurrences of the trial, to overrule the action of the trial judge, denying the motion. (217)</p>

<p>1. Taxation — Taxable Property — Stools in Foreign Corporation. Under Rev. Stat. Sec. 5687, shares in the capital stock of corporations, either domestic or foreign, except banking corporations, are not 'taxable. (222)</p> <p>The proviso to this section is not in conflict with sec. 6 of art. X of the constitution. • (229)</p> <p>■ 2. Statutes — Construction. The Revenue .Act is to be considered as a whole. (222)</p>

<p>1. Railway Company — Duty Towards Trackmen. A railway company is under duty to provide that when a train approaches a gang of track repairers it shall give them a signal, in reasonable time, so that they may get out of its way. (239, 240)</p> <p>2. Negligence — Railway Company — Injury to Trackman. A track repairer, engaged in repairing track, was run down and seriously injured by defendant’s train. The train was running slowly and might have been stopped within twenty-five or thirty feet. There was evidence that the bell was not rung, nor the whistle sounded, that the track repairer was in plain view, but that-the engineer was looking to the rear of -his train. Held that the evidence was sufficient to convict the railway company of negligence, and that the question should have been left to the jury. (240)</p> <p>3. Contributory Negligence — Railway Trackman. One employed in the repair of the tracks of a railway where trains are frequently passing is under duty to keep such lookout as a reasonably prudent man would do under like circumstances. The circumstances of the particular case control. It is not to be determined as matter of law how often he must look about him. (241)</p> <p>Plaintiff was one of a group of men employed in repairing the track of a railway, and while so employed was run down and seriously injured by defendant’s train. He testified that he was not aware of the approach of the train; that no signal was given; that he knew that trains were likely to- pass, and that it was his rule to look for an approaching train at intervals of from one to ten minutes. Some of the party.were still at work upon the tracks, at the time of the injury, and next previous thereto. The train came from the north and was moving slowly with little noise; plaintiff was facing to the south. The work in which he was employed occasioned some noise, and a train upon another track nearby was passing at speed. Held that the question of contributory negligence should have been left to the jury. (241, 242)</p> <p>4. -Last Clear Chance. It appearing that the engineer, if he had looked, must have seen the plaintiff in his exposed position, while still at a considerable distance from him, and that the train might have been stopped within twenty-five or thirty feet, it was held that even if plaintiff were convicted of contributory negligence, be was entitled to recover under tbe approved doctrine of Last Clear Chance. (242, 243)</p>

<p>1. Surveys — Monuments. When the place at which the surveyor subdividing the public lands for the government placed a stone to mark a section corner can be ascertained, that point is the corner. (244)</p> <p>2. Evidence—Opinions. The opinion of a single witness, not supported by any reason, that a particular stone found by him, many years before controversy arose, was a section corner, rejected. (245)</p>

<p>1. Pleadings — Striking from the Files. That portions of a pleading are impertinent or irrelevant is no ground to strike out the whole pleading. (248)</p> <p>2. Mandamus — Judgment Upon the Pleadings, without hearing proofs is error. — Parr v. Sexson 56 Colo. 491, followed. (249)</p> <p>3. Pabties — necessary. Mandamus to compel the directors of an Irrigation District to deliver certain warrants of the district, to which the plaintiff claims to be entitled, must join the district. (249)</p>

<p>1. Fraudulent Conveyances — Who is a Creditor. One who has sustained a personal injury by the negligence or misconduct of another is a creditor of the offending party, within the meaning of Rev. Stat. Sec. 2671, even though his claim has not been reduced to judgment. (253)</p> <p>2. Husband and Wife — Conveyances Between — Presumptions. Where a debtor conveys lands to his wife when he is insolvent, or by the transfer is made insolvent, and the conveyance is assailed by a creditor, the husband and wife have the burden to establish by a clear and satisfactory proof that the conveyance was for a valuable consideration, and without intent to hinder, delay or defraud the creditors. General statements of the wife that her money purchased the land in question, without reference to any record or source of information by which they may be verified, will not suffice. As against a creditor the law will not uphold a conveyance by an indebted husband to his wife, where the transaction is shrouded in mystery and doubt. The evidence examined and held entirely insufficient to support the conveyance. (254, 256)</p> <p>3. Appeal and error—Findings manifestly against the Weight of Evidence will be set aside. (254)</p> <p>4. --Findings On Conflicting Evidence, are not controlling upon the court of review, where the conflict is internal in the evidence of the successful party, and not between that and the testimony of any other witness. (255, 256)</p>

<p>1. Pleadings — Construed. The complaint alleged a purchase by-plaintiff from defendant of a traction engine; that the purchase was induced by certain representations of defendant as to the capacity of the engine, which were relied upon by plaintiff; the falsity of these representations, the entire insufficiency of the machine, its return by plaintiff and receipt and detention by defendant, and prayed judgment for the return of the moneys paid by plaintiff on account of the purchase, and the cancellation of certain promissory notes executed by him for part of the purchase price. Held an equitable action for rescission of the contract. (259, 262)</p> <p>2. Fraud—Sale—Innocent False Representations of the Seller, material to the transaction, and inducing the purchase, bind him in equity even though he was not guilty of intentional fraud. (265)</p> <p>3. -False Representations as of One’s Own Knowledge, as to matters of which the party is ignorant, the law imputes a fraudulent intent. (265)</p> <p>4. -Rescission of Contract — Delays. One who would rescind a contract must do so within a reasonable time. Delays induced by the promises of the other party, or his acts and declarations, may be excused. (267)</p>

<p>1. Mechanics Liens — A Creature of Statute, and can be enforced only in cases within the statute and by those persons to whom the statute plainly gives the right. (273)</p> <p>2. -Notice of Non-Liability from Land Owners—When Required. The purpose of Rev. Stat. Sec. 4029 is to require the land owner, where another in possession is making improvements not authorized by any agreement between them, to give notice to those performing the labor, or furnishing, the material, that his interest is not to be subjected to any lien therefor. Where the work is such as is authorized by agreement between the land owner and the person at whose instance such work is performed, and is not such as entitles those performing it to a lien under the other provisions of the statute, the estate of the land owner does not become chargeable by his failure to give the notice. (279)</p> <p>3. -Work Upon Mines—At Instance of Lessee. Section 4028 of the Revised Statutes does not entitle those performing ordinary development work, at the instance of a lessee, merely in order to extract the ore which the mine contains, to -a lien upon the estate of the lessor. (274)</p> <p>A bond conditioned for the conveyance of a mine recited that the obligee should -be entitled to immediate possession, should commence work on the premises by a day named, "and work the same continuously, in a thorough and workmanlike manner,” depositing in a specified bank, to the credit of the obligee, a certain percentage of the values extracted, "all shaft work * * * to be substantially timbered * * * and all drifts where reasonably necessary.” The work done by the obligee was that usually performed for extracting ores. Held that, as against the mine owner those performing the work were not entitled to a lien under this section of the statute. Pike v. Empfield 21 Col. App. 161, and Clark Co. v. Centennial Co. 22 Col. App. 174, distinguished. (269, 275, 280)</p>

<p>1. Taxation — Taxable Property — Works of Irrigating Company. A canal owned by mutual irrigating company, and used exclusively for irrigating the lands of the individual members of such corporation is exempt, under the constitution, from separate taxation.</p> <p>The head-gates of such canal are parts thereof, and are likewise exempt. (287)</p> <p>So a dam, which is part of the works by which water is collected and diverted. (287)</p> <p>Such works are not to be regarded as improvements to the land upon which they are situate. (287)</p> <p>2. -Water Rights, under Rev. Stat. Sec. 5540 • are, for the purposes of taxation, part of the real estate upon which the water is applied. (288)</p> <p>3. Constitutional Law — Legislative Power. As a general proposition, and save as restricted by the constitution, it is competent for the legislature to fix the situs of property for taxation. (288)</p>

<p>1. County Court — Appeal to District Court — Time of Filing Bond Under Sec.' 243 of the code, where, in the county court, a motion for a new trial is interposed in apt time, it has the effect to reserve the case for further consideration. An appeal bond filed within ten days after judgment formally entered, upon the denial of such motion, is in time. (292)</p> <p>2. -Defective Bond — Amendment. Under Rev. Stat. sec. 1539 an appeal is not to be dismissed for defects in 'the appeal bond if the appellant within a reasonable time shall file a sufficient bond. (293)</p> <p>3. Practice — File Marie — Effect. The file mark upon an appeal bond is controlled by the record, where this shows that the bond was lodged and approved at an earlier date, and in due time. (292, 293)</p> <p>4. Executors and Administrators — Special Execution Against. Action commenced and an attachment levied in the lifetime of defendant. The attached property was sold, pursuant to stipulation of the parties, and the money paid into court to await the result of the action: The defendant died during the pendency of the action, and the administrator being substituted, judgment was given against him. Seld that notwithstanding the provisions of -Rev. Stat. sec. 7209 it was proper to award a special execution, directing the sheriff to take and apply the proceeds of the attached property to the satisfaction of the judgment. (294)</p>

<p>1. Executors and Administrators — Distribution—Stay of. One claiming a share in the estate of a decedent, who is prima facie entitled thereto, and is diligently prosecuting her claim in the courts, is entitled to apply in the court of administration to stay a distribution which will so reduce the estate as to impair her right, until those to whom distribution is directed shall give bond for re-payment of the amounts distributed whenever she shall have established her right. (297)</p> <p>To deny the application is a gross abuse of discretion. (298)</p> <p>2. Writ of Error — Who May Prosecute. One who applies in the county court for a modification of ap. order for pie distribution of a decedent’s estate, thereby becomes party to the administration proceedings, and is entitled to a writ of error to review an order denying her application. (298)</p>

<p>Judgment reversed on the authority of Willson v. Colorado & Southern Co. 57 Colo. 303.</p>

<p>1. Change oe Venue — Waiver. A defendant who after the erroneous denial of her motion for a change of venue voluntarily answers, and proceeds to trial without objection, waives her right to the change. (302)</p> <p>2. Divorce — Condonation—Plea' of, may be pleaded with the general denial. (302)</p>

<p>Error to Routt County Court.—Hon. Chas. A. Morning, Judge.</p>

<p>Damages — Trespass to Metalliferous Mines. In the case of 'an innocent trespass, and the subtraction of ore from a metalliferous mine, the measure of damages is the gross value of the ore before disturbance; not the net product or gross proceeds. Where the trespass is wilfull, and the wrong-doer lias milled the ore, or sold it, the plaintiff recovers the1 gross proceeds realized, without any deduction for the increased value which the trespasser has created by his efforts.</p>

The premises in controversy are marked A in the following plat. Those which the court found were described in the tax deed are marked B. The line “A — B,” is the line drawn by the assessor as mentioned in the opinion. Error to Denver District Court.—Hon. Harry C. Riddle, Judge.

<p>1. Vendor and Vendee — Non performance by Vendor — Remedies of Vendee. Where the vendor fails to perform a- substantial covenant on his part the vendee may rescind and recover damages, or may affirm the contract and sue for the damages occasioned by the vendor’s failure to perform. (323)</p> <p>These remedies are inconsistent, and where the vendee has made his election he must stand or fall by the position so first assumed. (323)</p> <p>2. -Contract Construed. Agreement for the sale of five acres of land. The agreed price, and the reasonable value was $2500.00. During the negotiation question arose whether about one-tenth of the tract was above the lateral by which the land was irrigated, and the vendor agreed, if this should prove to be the case, to provide means by which water could be made to cover this elevated part. Held this provision imported that the vendor should either raise the lateral, or grade down the elevation; and it appearing that the change in either manner would not have exceeded in cost about $75.00, held further that the provision was not an essential part of the agreement, a condition precedent, nor a dependent covenant, but a minor detail, for default in which the vendee might be compensated in damages; and that he was not entitled to rescind for the vendor’s failure to perform it. (324, 325)</p> <p>3. Practice — Change of Issues — Power of the Court. The court has no power to change an action for the rescission of a contract to an action for damages, without the consent of both .parties. (325)</p> <p>4. Pleading — Amendment Under Order of Court — Effect—Waiver. Action to rescind a contract. The court, against the objections and exceptions of both parties ordered plaintiff to file a complaint demanding damages in lieu of rescission. Plaintiff, protesting and expressly reserving all rights, complied with the rule. Held that he waived no right. (326)</p> <p>5. Pleading — Amendments, are largely in the description of the court. The refusal to permit plaintiff to set up, more than a year after the institution of the action, a new ground for the relief which he demands is not an abuse of discretion. (326)</p>

<p>Error to Mesa County Court.—Hon. Walter S. Sullivan, Judge.</p>

<p>1. Appeal and error — Finding on Conflicting Evidence, where there is sufficient to support it is conclusive. (335)</p> <p>2- -Error to Court of Appeals. The Supreme Court is restricted by Rule 50 to the consideration of questions which, in the Court of Appeals, are ' presented and considered on petition for rehearing.</p> <p>The rule applies to both parties. (336)</p>

<p>Justice of the Peace — Jurisdiction. A justice of the peace may entertain jurisdiction of an action upon a promissory note specifically payable at a place within his precinct, though defendant resides in a different precinct.</p>

<p>1. Specific Performance — Contract of Stockholders in Corporation for Increase of Stock. Two directors of a corporation, owning the majority of the stock outstanding, agreed with a broker that its stock should be increased, that a proportion of the increase should be awarded to one of the directors, without anything to be paid therefor, and another proportion should be awarded to the broker in consideration of his procuring the sale of other shares, so as to produce a specified sum. Bill by the broker against the contracting directors, for specific performance. Held that inasmuch as to specifically enforce the contract would involve the coercion of the corporation to do what it had never agreed to do, and might be unwilling to do the relief must be denied. (341, 342)</p> <p>2. Parties — Necessary Defendants. A contract of directors of a corporation contemplating and requiring a corporate action cannot be enforced in an action to which the corporation is not party. (343)</p> <p>3. Corporations — Treasury Stock. Stock held by a corporation for sale, unsubscribed» is not treasury stock. (342)</p> <p>4. -Issue of Stock for Services, if authorized by the Constitution and statutes, is permitted only where the services rendered are equal in value to the stock. (343)</p> <p>5. Contract — Illegal. A contract by stockholders of a corporation, who are also directors, with a broker, that the stock of the corporation shall be increased, that one of the directors shall receive a portion of the increase without paying therefor, and that for certain services to be rendered by the broker he shall receive an excessive reward in stock is vicious. (342)</p> <p>6. Injunction — Preliminary—Emergency. Two judges of the district court had passed upon the alleged emergency upon which a preliminary injunction was awarded. On appeal the court declined to review their action. (344)</p>

<p>Sheriff — Process Where He is a Party Must be Served by Coroner. Rev. Stat. Sec. 1298 is mandatory. Where the sheriff is party to an action all process therein must be served by the coroner. A special panel of jurors summoned by the sheriff in such case, must be discharged on motion.</p>

<p>Action for Negligence. Plaintiff ‘having produced evidence sufficient in the opinion of the court to require submission to the jury, a judgment of non-'suit ordered on motion of defendant was reversed.</p>

<p>Judgment clearly supported by the evidence as unquestionably just. Affirmed.</p>

<p>Error to Logan County Court.—Hon. Jno. W. Landrum, Judge.</p>

<p>Error to Lake District Court.—Hon. James Owen, Judge.</p>

<p>Error to San Juan County Court.—Hon. William Palmquist, Judge.</p>

<p> Error to the Court of Appeals. </p>

<p>1. Street Railway Company. Gave Required in Operation of Gars. One operating a street car, seeing a pedestrian near the track, but not in a position of peril, and not under circumstances warranting the apprehension on the part of a reasonably prudent person that she will presently be in peril, is not under duty to stop his car, even though there is time. (356, 357)</p> <p>2. Instructions. Erroneous — Presumption. No presumption will be indulged that the jury evolved a correct rule from an erroneous instruction. (356)</p> <p>3. --Construed. Action for an injury attributed to negligence in the operation of a street car. The jury were told by one instruction that if the motor-man failed to stop his car, after, by reasonable care, he could have discovered plaintiff “near or upon the track.” Another point of the charge declared it to be the duty of one about to cross the tracks of a street railway, to exercise such care as a reasonably prudent person- would, under like conditions. Still another instruction recited conditions under which the plaintiff must fail, referring to plaintiff, when she “stepped upon the track in front of” the car, or “was about to do so.” Held that the latter instructions had not the effect to impose upon the phrase -"near or upon the track,” in the first, the sense of “dangerously near, or in a position of peril.” Hill and Teller, JJ., dissented. (359)</p>

<p>1. Contracts. Consideration — Mutuality. Plaintiffs being indebted to defendants in $10,759 executed a note therefor due in three years, with interest, and conveyed to defendants, as security therefor, certain lands, situate in Kansas. A contemporaneous contract provided that plaintiffs should retain possession of the lands for three years, might sell the same, paying over anything received thereon to defendants, and if they should fail to sell the lands, or should not pay the note at maturity, the title of the lands “should be and remain” in defendants, and plaintiffs should be credited on their note with the sum of $11,200. Plaintiffs having failed to pay the note demanded the credit of $11,200, tendering what they alleged to be the balance. Held that the demand, and compliance therewith, would be a consideration sufficient to vest title in defendants, and bar the equity of redemption; and that there was no lack of mutuality in what was proposed. (366, 369)</p> <p>2. Mortgage. Conveyance Absolute As — Contract Barring Mortgagor’s Equity. Lands were conveyed as security for indebtedness. A contemporaneous contract provided that if the indebtedness should not be paid at or before its maturity, the land should remain the property of the mortgagees, and the mortgagors should be entitled to a certain credit. Held that the mortgagor insisting that the creditor should accept the lands; and allow the credit, the mortgagees were not to be heard to contend that the provision for thus barring the equity of redemption was invalid; that the mortgagors insisting upon the mortgagees’ acceptance of the land, according to his contract was estopped to afterwards deny their title. (368, 369)</p> <p>3. Contracts. Construction. Several instruments executed at the same time, between the same parties, and relating to the same matter, are to be construed together. (371) ■</p> <p>4. Equity. Reformation of Writings — Measure of Proof Required. One seeking the reformation of a writing has, not only the burden of proof, but must produce evidence sufficient to rebut the strong presumption created by the writing itself. (372)</p> <p>5. Account — Mortgagor and Mortgagee. Lands were conveyed by deed absolute, as security, with an agreement that if the indebtedness should not be paid at or before its maturity, the mortgagee should retain the title, allowing a certain credit. The conveyance contained a covenant against incumbrances, except a certain mortgage.</p> <p>The mortgagors were held entitled to a credit for interest paid by them upon the mortgage recited, which had accrued prior to the date of the conveyance; also for taxes paid upon the lands, and upon other lands included in the security; and it appearing that there was a second mortgage not mentioned in the conveyance or accompanying contract, they were held entitled to an allowance for payments made on account thereof, with interest upon each payment from the date thereof. (373, 374)</p> <p>6. Tender. Effect. Tender of more than the amount of the debt stops interest from the date of the tender. (373)</p>

<p>1. Evidence. Parol Inadmissible. All prior negotiations merge in the writing finally executed to evidence the agreement of the parties. (380)</p> <p>2. Pleadings. Complaint Upon a Warranty of Personalty, must show, not only the warranty, but substantial compliance with the conditions imposed by the contract, or facts excusing non-compliance.</p> <p>The complaint counted upon the warranty of a stallion as a reasonably sure foal-getter. The contract of sale obligated the purchaser to proper feeding, etc., and other conditions. A complaint not showing compliance with these conditions nor excusing failure in that behalf states no cause of action. (381)</p> <p>3. Damages. Measure, in an action for the breach of a warranty of chattels is the difference between the market value of the chattel, at the time and place- of the sale and delivery, if it had corresponded with the warranty’ (even though in excess of the agreed price), and its actual value with its then existing defects, together with any special damages necessarily resulting from the breach of the warranty. (382, 383)</p> <p>The purchaser is to be allowed the expense of the keep of the animal, only up to the time when the breach of the warranty became definitely known. (389)</p> <p>Interest is not to be allowed upon the damages. (390)</p> <p>The purchaser having retained the animal, the seller is entitled to an allowance for his value, for other purposes than that for which he was purchased. (383)</p> <p>4. -Loss of Profits. The loss of profits during the breeding season is too speculative and remote. (389)</p> <p>5. -Several Plaintiffs — Part Only Prevailing. In an action upon a contract, by several plaintiffs, as to only a part of whom the action is sustained, the recovery is the same as if all were entitled. (391)</p> <p>6. Evidence — Presmptions. The price at which a chattel is sold is presumed to he the real value where there is no other evidence upon the question. (384)</p> <p>7. Conte acts . Construed. Contract for the sale of a stallion, with a warranty, followed by the words “or it will replace said horse with another of equal value.” The liability of the seller is not limited by this alternative. If the animal was not as warranted the seller is liable in money damages. (384) „ '</p> <p>Though the contract for the sale of a stallion provides that upon certain conditions, to be kept by the purchaser, the horse “will prove to be a reasonably sure foal-getter,” the warranty is as to the present condition of the animal. (388)</p> <p>8. Feaud. Who May Complain. Action upon a contract by several plaintiffs. Fraudulent representations on the part of some of the plaintiffs, made at the instance of the defendant, and inducing the others to enter into the contract, is no defense to the action. (390)</p> <p>9. Chanse oe Venue. Place of Performance of Contract — Action for Tort. Action for the breach of the warranty of a stallion as a sure foal-getter. The warranty was upon certain conditions as to the' manner of feeding and handling by the purchaser, the class of mares to which a stallion should be bred, and monthly reports to the seller of the names of the mares, with the name and address of the owners. Fraudulent misrepresentations inducing the purchase were alleged. Plaintiffs were farmers residing at the County of Lincoln. Held that under Sec. 27 of the code, the action was properly brought in the County of Lincoln, both because that was the county where the contract was to be performed, and because of the character of the action as one of tort; and that defendant was not entitled as of right, to change the venue to the county of its residence. (389)</p>

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

<p>1. Pleadings. Special Demurrer, not containing the specification of causes required by the code (Sec. 57), will be treated as a general demurrer. (406)</p> <p>2. Tendee. When Must he Pleaded. The complaint alleging that defendant, holding the legal title to lands, in fact as security for money, had repudiated the trust and asserted absolute title, praying an account, and a decree for a conveyance, upon payment of whatever might appear to be due, semble it need not allege a tender or offer to pay. (408)</p> <p>3. Pleadings. Construed. The complaint alleging that Wood, holding the legal title to certain lands as security for money, had conveyed them to defendant, without consideration, and with directions to sell the land and pay plaintiffs’ ancestor one-third of the moneys due Wood, that defendant had long been in possession receiving the rents and profits, which exceeded the interest on the mortgage indebtedness and Ms outgoes for taxes and the like, prayed an account of the profits of the lands, and that they be permitted to pay defendant the balance of the mortgage indebtedness, and have title to the premises vested in them, Held to disclose an offer to pay defendant whatever should be found due him upon the account. (407)</p> <p>4. Appeal and Error. Harmless Error. Error in refusing to strike out immaterial matter, not prejudicial to the moving party, is harmless. (408)</p> <p>5. Statutes. Foreign, have no effect upon transactions relating solely to lands situate in Colorado. (408)</p> <p>6. Mortgage. Heed Absolute for Securing Money, is a mortgage. The grantee has a lien, but no estate. (408)</p> <p>7. -Surrender of Possession by Mortgagor, to mortgagee does not of itself, extinguish the mortgagor’s estate, or the mortgage debt. (408)</p> <p>8. Limitations. Color of Title — Good Faith. One asserting a false claim of title under an absolute deed, in fact given as security, will not be heard to plead the seven years’ statute of limitations (Rev. Stat. Sec. 4089, 4090). (408, 410)</p> <p>9. Equity. Laches. Lands were held by title absolute, but in fact as security for money. Possession was delivered to the mortgagee, and for many -years he received the rents and profits, not as his own, but for the mortgagor. The mortgage debt was never denied. Held that the mere lapse of time, the relations continuing, and being admitted, affected the rights of neither party. (409)</p> <p>10. Mortgage. Deed Absolute, as Security. Hall exchanged lands in Colorado with Elston, for properties in Missouri, which were encumbered to Wood; and at Elston’s instance, Wood consenting, the lands in Colorado were conveyed to Wood, who thereupon executed a lease to Elston, with a covenant to convey, upon the payment of the moneys owing by Elston. Held, in effect, a mortgage of the lands in Colorado by Elston to Wood. (414, 415)</p> <p>11. -Absolute Deed, with or without a contemporaneous agreement of sale, is presumed to be, in fact, what it appears to be. He who asserts that it was intended as a mortgage must show by clear and convincing evidence that this was the intention. (416)</p> <p>12. Appeal and eeeob. Presumptions. In the court of review the presumption, in the first instance, is, that the decree of the court below is correct. (413)</p> <p>13. -A Decree Fairly Supported by the Evidence, and in harmony with a true conception of the.law, should not be disturbed, even though the court of review might have reached a different conclusion. (412, 413)</p> <p>14. Pleadings. Amendments. Complaint seeking to charge certain lands with a trust. It appearing that the defendant had exchanged portions of the lands for others, receiving boot money, Held proper to allow an amendment praying the imposition of the trust upon the lands received in the exchange, and that defendants account for the moneys received in the exchange. (417)</p> <p>15. Trusts. Following Trust Property. Equity permits the beneficiary to follow the trust property into new investments. (417)</p> <p>16. Mortgage. Assignment. Wood, holding the legal title to lands as security for money, conveyed them, without consideration, to Hawkins, instructing him to collect the mortgage indebtedness by sale of the land, compensate himself for his trouble, and pay one-third of the residue of the mortgage money to each of persons named. Held an assignment of the mortgage debt. (418)</p> <p>17. Appeal and Error. Judgment. Wood holding title to lands by absolute deed intended as a security for money, conveyed to. Hawkins, without consideration, and with directions to collect the moneys due, by sale of the lands, and distribute the moneys, paying one-third to Elston. In an action by the heirs of Elston to enforce the trust under which Hawkins had received the title, the court below decreed in favor of plaintiffs, but failed to find the amount of the mortgage debt, or whether the transaction by which Hawkins received the title constituted a gift to Elston. The decree was reversed with directions to the court below to find as to the alleged gift, ascertain the amount due on the mortgage, and enter a decree vesting the title in plaintiffs, upon payment within a reasonable time of the amount found due, with interest from the date of entry, and to allow defendant to amend his pleadings so as to pray foreclosure, in default of payment of the mortgage debt. (418, 419)</p> <p>18. --Costs. Inasmuch as the plaintiffs stood in the attitude of a mortgage debtor seeking, redemption, but the greater amount of the costs had been occasioned by the wrongful conduct of the defendant, it was directed that neither party should recover costs, in the court of first instance, or the court of review. (419)</p> <p>19. Parties. Heirs Suing Upon Gift to Ancestor. Wood held title to lands as security for money owing him by Elston, and conveyed the lands to Hawkins, without consideration, and with directions to collect the amount due him, by sale of the lands and pay one-third thereof to Elston. Hawkins still holding the title Wood died and his estate was settled. Elston’s heirs were allowed to maintain an action upon this transaction, in their own names.</p>

<p>Tax Title. Deed, Substantially in Statutory Form, is not voio upon its face.—Imperial Securities Co. v. Morris, ante followed.</p>

<p>1. Evidence. Competency. Evidence relevant to any phase of the issues, is admissible. (424)</p> <p>2. Gift inter vivos. Of Corporate Stock, does not require endorsement of the certificate in order to its validity. (429)</p> <p>3. -Evidence. Oral declarations, e. g. “I have given all my stocks,” to a party named, justifies the conclusion that the donee is entitled to all corporate stocks owned by the donor at the time of the declaration. (430)</p> <p>4. Administrator. Liability. Corporate stocks were delivered, under protest, to administrators, by one in possession of, and claiming them by gift of the decedent, and were by them inventoried, and a portion, thereof afterwards sold under order of the County Court. The administrators acted throughout in good faith, under the advice of the County Judge, and with- the knowledge of plaintiff. They made no personal gain in the transaction. Held they were not personally liable for the value. (430)</p> <p>5. Intervention. Effect — Pleading Thereto. Action against administrators, personally, for the value of certain corporate stock. They intervened in their representative capacity. The heirs also intervened, praying that the stock be decreed to them. Held that plaintiff was entitled to answer the intervention petitions precisely as if the same matter had been presented in an original complaint, even although this presented equitable questions; that this was expressly allowed by Sec. 23 of the Revised Code; and that the action should proceed to a final decree upon the issues made by the petitions, and plaintiff’s cross-complaint thereto. (437, 438)</p> <p>6. Specific Performance. Contract — Certainty-—Consideration. The plaintiff claiming certain corporate stocks against the heirs and personal representatives of one Hall, relied upon a clause in an agreement between the heirs of Hall, which provided among other things that “the stocks and shares inventoried as belonging” to plaintiff, “shall be considered her property, and the certificate shall be delivered to her.” Considering that the shares in question had at the decease of Hall been in possession of plaintiff, and had been by her delivered to the administrators, on their demand, but under protest and without waiver of any right, and had been inventoried with a statement of her claim and protest; that the agreement in question had for its purpose the adjustment of an action then pending between the heirs, involving the whole estate; that it resulted in the settlement of that controversy, and the disposition of the entire estate except the shares in question; that the heirs were represented by counsel who it was reasonable to assume were fully informed as to the details of plaintiff’s claim; and that there were no other stock in dispute, it was held that the agreement was not objectionable for uncertainty, and that the mutual covenants of the heirs was a sufficient consideration, moving to each. (433, 435)</p> <p>7. -Contract Between Third Persons. In the same case. Held that the circumstance that plaintiff was not a party to the agreement upon which she relied was no obstacle to its specific performance on her behalf. (436)</p> <p>8. Estoppel. By Conduct. An action asserting title to the entire estate of a deceased person does not estop the plaintiff from afterwards asserting a just claim to a portion thereof. (439)</p> <p>9. Damages. Conversion of Corporate Stock — Of what Bate to he Valued. Administrators had demanded corporate stock from one who was entitled thereto by gift of their intestate. She delivered them under protest, and the administrators received the same in their representative capacity and disposed of a portion thereof, applying the proceeds to the purposes of the estate. Held that the stock should be valued as of the date of the administrators refusal to surrender them on plaintiff’s demand, with an addition for any dividends paid thereon, after the date of a certain agreement by which plaintiff’s right to the stock was conceded by the heirs, and the date of her demand therefor, with interest upon the entire amount from the date of the demand. (441)</p> <p>10. Trover. Date of Conversion. Corporate stocks held converted at the date when demand of one entitled to immediate possession is refused. (442)</p> <p>11. Mandate. Containing erroneous directions, recalled upon petition filed at the same term, specifying the error. (443)</p>

<p>Adoption op Child. Effect. The statutes regulating the adoption of children (Rev. Stat. secs. 526, 529, 7042) make the adopted child the heir of the adopting parent; and the adopting parent the heir of the child if he die without marriage or issue; hut the latter provision does not extend to the heirs of the adopting parent.</p> <p>The children of the adopting father do not inherit from the adopted child. (450)</p>

<p>1. Criminal Law. Larceny — Evidence, examined and found amply sufficient to warrant a conviction. (452, 454)</p> <p>2. -Instructions. Indictment for Larceny. The evidence was circumstantial, and the court charged that the circumstances relied upon by the prosecution, should, to warrant a conviction, be made out beyond a reasonable doubt, and be “substantially inconsistent” with the prisoner’s innocence; “practically incompatible with any reasonable hypothesis of his innocence;” “clearly and substantially made out,” beyond reasonable doubt. The phrases quoted were condemned as a departure from the phraseology established and approved in like cases, but the evidence of guilt being overwhelming, held that they were not prejudicial. (455)</p> <p>3. Words and Phrases “Clearly and Substantially,” “Practically Incompatible,” construed. (451, 458). Hill, X, dissented.</p>

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

<p>Error to Denver District Court.—Hon. Greeley W. Whitford, Judge.</p>

<p>1. Negligence — Physician anti Surgeon. To adopt for the reduction of a fracture the methods generally recognized by the profession as proper, is not negligence. (487, 488)</p> <p>Where a surgeon is employed to treat an injury the law implies, in the absence of any express agreement, a contract on his part that he will use reasonable and ordinary care to accomplish the purpose of his employment. (489)</p> <p>. The surgeon does not warrant a cure, and is not responsible for a failure not resulting from the omission, on his part, of ordinary c^,re, or the want of ordinary skill. (489)</p> <p>The want of ordinary care is not established by the result alone, but must be shown by other evidence. (489)</p> <p>The evidence examined and held sufficient to charge the surgeon with a failure to use ordinary care. (487, 490)</p> <p>2. Damages — Evidence as to. Action against a surgeon for negligence in reducing a fracture, by reason of which negligence a second fracture, and a second reduction, became necessary. The evidence held sufficient to warrant a verdict for one thousand dollars, and that such award was no evidence of passion or prejudice on the part of the jury. (490, 491)</p> <p>3. -Excessive Verdict — Remittitur—Effect. Plaintiff’s voluntary remittitur of three hundred and fifty dollars from a verdict of one thousand dollars warranted, by the evidence, has not the effect to entitle defendant to a new trial. (491)</p>

<p>1. Corporations — Manufacturing—Mortgage of Plant Without Consent of Stockholders — Effect—Statute Construed. Section 865 of the Revised Statutes was intended for the protection 'of the stockholders, and not of the public. Where the stockholders make no objection to the action of the directors, subsequent creditors of the corporation will not be heard to complain. The opinion in Carlsbad Co. v. New, 33 Colo. 389 is not authority for the opposite conclusion. (499, 508)</p> <p>■ The provision of the statute prohibiting the encumbrance of the plant does not concern the public at large. No principle of public policy is involved; no wrong is done to any human being by an encumbrance made without the consent of the stockholders, save to tte stockholders themselves; as others are not concerned they have no right to avail themselves of the irregularity. (499)</p> <p>2. -Ultra Tires. A contract fully executed will he allowed to stand though beyond the powers of the corporation. (502)</p> <p>3. Statutes — Construction—Void or Voidable. Void, in a statute intended for the protection of a particular class construed to mean voidable, and only at the instance of those of the protected class. (498, 499)</p>

<p>Contract — Validity—Nudum Pactum. The agreement of a creditor whose demand is matured and payable, to accept the promissory notes of a stranger in satisfaction thereof, and this without any new consideration moving to him, is not enforcible.</p>

<p>1. Water Rights — Adjudication of Priorities. In the statutory-adjudication of priorities, the court is limited to an inquiry as to the volume of water to which the ditches are respectively entitled and their relative priorities. The title of a claimant to the conduit by which the water is diverted is not a matter for investigation or determination. (518)</p> <p>2. -Conflicting Testimony. Where the testimony as to the volume of water to which a claimant is entitled is conflicting, but there is sufficient to sustain the award made in the court below, it will not be disturbed. (518)</p>

<p>Error to Denver District Court.—Hon. Hubert L. Shattuck, Judge.</p>

<p>Eminent Domain — Value of Land Taken, is to be estimated, not merely with reference to the use to which it is at the time applied, but with reference to all uses to which it is plainly adapted. The owner is entitled to the market value thereof, considered with reference to all useful purposes, to which in its then condition, it can be devoted. (534)</p>

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

<p>Error to Conejos District Court.—Hon. Charles C. Holbrook, Judge.</p> <p>This suit to quiet title, concerns a tract of land in Conejos county, for which a patent was issued in 1888 to one Flemming, and from whom it passed by mesne conveyances to Harriet E. Chapman. In 1889 she executed a trust deed on the property containing the following clause:</p> <p>“And that she will not at any time hereafter, until the said principal sum and the interest thereon shall háve been fully paid suffer said premises, or any part thereof, to be sold for any tax or assessment whatsoever, nor will she do, or permit to be done to, in, upon or about said premises, anything that may in anywise tend to impair the value thereof, or to diminish the security intended to be effected by virtue of said instru- ■ ment. ’ ’</p> <p>In 1899 the land 'vtas sold to the county for the taxes of 1897, and November 16, 1901, the tax sale certificate was purchased by and assigned to Jesse Euby, who paid the taxes for 1898, 1899 and 1900, endorsed thereon, February 17, 1902, Euby took a treasurer’s deed on the certificate and August 7, 1903,* conveyed to William S. Woods, defendant in error, whatever right he had acquired. June 17, 1897, the land was sold to the county for the taxes of 1895 and in 1901 the tax sale certificate was assigned to Euby who in 1907 assigned.it to Woods, and November 25, 1907, Woods took a treasurer’s deed on the certificate.</p> <p>In 1898 the land was sold for the taxes of 1896 and in 1901 this tax sale certificate was assigned to Euby, who in 1907 assigned it to Woods, and November 25, 1907, Woods took a tax deed on this certificate.</p> <p>In 1903 the land was sold to the county for the taxes of 1901 and June 25, 1903, this tax sale certificate was assigned to Euby who March 24, 1904, assigned it to Woods, and in 1907 Woods took a tax deed on this certificate.</p> <p>July 22, 1904, Woods took a quit claim deed to the land from Harriet E. Chapman.</p> <p>In 1908 the trust deed given by Chapman was foreclosed,, and November 28, 1908 a trustee’s deed given to Charles E. Gibson, plaintiff in error.</p> <p>In 1911, Gibson brought this action under the code to quiet title, alleging he was in possession of the land; that Woods claimed some adverse right therein, and asked that he be required to set forth the nature and character of the right. Woods’ answer admitted that he claimed to own the land in fee simple, and set forth the nature and character of his right as being grounded upon the tax title he had taken in 1902 from Euby; that in 1899 the land was sold for the taxes of 1897, and in 1902, a tax deed was issued to Euby who also paid three years taxes endorsed upon the certificate, and in August, 1903, Euby conveyed whatever right he had, to Woods, who had since paid the taxes; also that he held tax deeds on the land for the taxes of 1895, 1896 and 1901.</p> <p>On the trial plaintiff introduced in evidence the U. S. patent to Flemming, the Mesne conveyances to Chapman, the deed of trust given by Chapman in 1889 and the trustee’s deed to Gibson in 1908, and rested. Defendant then offered the 1902 tax deed to Ruby and the other tax deed, and it was stipulated that whatever right Ruby acquired became vested in Woods by a deed, on August 7, 1903. On objection being interposed to their introduction, the court excluded all the tax deeds, for the reason that they were void upon their face. Woods then claimed to own the right to redemption and reimbursement, and the parties stipulated in open court that upon the. question of the ownership of the right to redemption, and to the redemption value of the tax sale certificates, and other taxes, that Woods and his grantor Ruby had paid the taxes by tax sales, tax deeds and other payments for the years ’95, ’96, ’97, ’98, ’99, ’00, ’01, ’02, ’03, ’04, ’05, ’06, ’09 and ’10, and if the court should find Woods owned the right to redemption, and was entitled to be reimbursed, that the attorneys would procure.from the county treasurer a compilation of the •amount of such payments, interest and penalties, which should be inserted in the decree as a finding of fact in open court upon proof. Defendant then rested, and plaintiff, to' defeat Woods’ claim1 to the ownership to the right to redemption, offered in rebuttal a quit claim deed of date July 22, 1904, heretofore mentioned, from Harriet E. Chapman to William E. Woods.</p> <p>February 1, 1913, the court in its final decree, pronounced the tax deeds void, and found that Gibson was the owner and in possession of the land; that Woods had no title, but did own the-right to redemption, which was of the value of $939.58, and which Gibson was adjudged to pay into court to reimburse Woods. Gibson brings the case here for review.</p>

<p>1. Evidence — Competency. Replevin for a warehouse and certain machines and machinery. The plaintiffs claimed under a sale of certain properties of a bankrupt corporation, made pursuant to an order of the referee in bankruptcy. The order recited that the stockholders had prayed that the real estate should not be sold, “which request was granted.” Held the fact that the corporation carried the warehouse on its books as real estate, was competent to show what the stockholders had in mind in petitioning for the exclusion of the real property from the order of sale. (554)</p> <p>2. -Effect. Replevin for a warehouse, plaintiff claiming under a sale of the properties of a bankrupt corporation, made pursuant to the order of the referee in bankruptcy. The only words of description in the order which could be construed to include the property in question were “fixtures and equipment.” The referee in bankruptcy, previous to the sale, caused an appraisement to be made of the warehouse and equipment, and other items, of much less value. Subsequent to the sale the referee ordered a second appraisement of the identical properties in controversy. These circumstances were accepted as tending to prove the absence of intention on the part of the referee, or the court in bankruptcy, to include in the sale the warehouse and equipment. (555, 558)</p> <p>That subsequent to the sale the purchaser negotiated with the trustee in bankruptcy for the rental of the warehouse, stating what, in his opinion, would be a fair rental, and making no claim that it was included in the purchase, was accepted as negativing the claim of plaintiffs. (556, 557)</p> <p>3. Judicial Sale — Defined. Is one-made under the process of a court having authority to order it. The court is the vendors and the officer conducting the sale is the mere agent of the coiirt. (558)</p> <p>4. -Caveat Emptor, applies to judicial sales. (558)</p> <p>5. -General Description of the property sold, when followed by a more particular enumeration, the latter governs. (559)</p>

<p>1. Chattel Mortgage — Place of Record. Where goods are sold in one county, to be immediately removed to another, and- are so removed, the latter county is the situs of the goods, within the meaning of the statute (Rev. Stat. Sec. 515). A chattel mortgage to confer any lien as against creditors of the purchaser must be recorded in the latter county.—Mumford v. Harris, 8 Col. App. 51, overruled. (561)</p> <p>2. Statutes — Construction. A statute the purpose of which is to give notice of an encumbrance upon personalty should receive the construction best calculated to accomplish this purpose. (562)</p> <p>3. Words and Phrases — “Bituated.” The direction that a chattel mortgage shall be recorded, “where the property mortgaged shall be situated,” (Rev. Stat. Sec. 515), means where the property is permanently situated. (562)</p>

<p>1. Mechanics Lien — To What the Lien Extends — Improvements by Tenant — Statute Construed. The lien given by § 4025 R. S. 1908, to mechanics, material men, etc., and persons performing labor or furnishing materials for the construction of any building, etc., upon the property upon which they have rendered service or bestowed labor, or for which they have' furnished materials, etc., at the instance of the owner or any person acting by his authority or under him as agent, contractor or otherwise, for the value of such work, labor, services or materials, primarily extends only to the structure or improvement placed upon the land. (570, 571)</p> <p>2. -Statutory Agent — Improvement—Land. The provision of § 4025 R. S. 1908, that “every person having charge of the construction * * * of any building * * * shall be held to be the agent of the owner,” confers upon the person so in charge the character of statutory agent of the one erecting the structure or improvement, but does not constitute him the agent of the owner of the land upon which the improvement is placed. (570)</p> <p>3. -When Lien Extends to Land. By virtue of R. S. 1908, § 4027, the lien provided for by R. S. 1908, § 4025, may extend to the land upon which the structure or improvement is placed, but can attach only when the owner of such land has some ownership in the building or improvement, and acts affirmatively relative to its construction or repair. (571)</p> <p>4. -Where Notice of Non-liability from the Landlord is Required. § 4029 R. S. 1908 applies only to; the case of an improvement" made without authority of the land owner, and where, after its progress comes to his knowledge, he fails to give notice to those engaged in the work, disclaiming liability. Grimm v. Yates, ante followed. Shapleigh v. Hull, 21 Colo. 419, distinguished. (574, 576)</p> <p>5. -Inception of Right to Lien — By Contract, or Estoppel. The inception of, or right to a lien under R. S. 1908, § § 4025, 4027, grows out of contract; under R. S. 1908 § 4029, it arises from estoppel. (574)</p> <p>6. Landlord and Tenant — Improvements —Leasehold and Fee. The mere inclusion in a lease of' a covenant to build does not of itself render the lessee either the agent or contractor of the lessor so as to bind the latter’s interest with a lien. The improvement must be of such a character and extent, or made under such circumstances, as to show that it was made e*‘&er by the lessor acting through the lessee as his agent, or as the joint undertaking of both, before the lessor’s interest in the land can be bound. (584, 587)</p> <p>7. -Rule Applied. A lease was granted for the term of 99 years, and provided that the tenant should, at his own expense, erect and complete a building to cost not less than $150,000, and thereupon the building and improvements should at once become a part of the realty. The landlord took no part in the erection of the building, having nothing to say as to the architecture, plans, or material, and there was no allegation or proof that the rents reserved were greater than the reasonable value of the premises. The lease was recorded on the day succeeding its execution, and was brought to the attention of the party contracting with the tenant. Held that the estate of the landlord was not chargeable with the lien. (587)</p> <p>8. -pease — Construed—Presumption. The provisions in the lease, which was duly recorded, that nothing therein should authorize or empower the lessee or any person dealing with him to charge the. fee, or any interest of the lessor therein, with any mechanic’s lien or encumbrance of any kind, nullified and destroyed any presumption that the lessee was the agent of the lessor within the mechanic’s lien laws, and constituted constructive notice to those subsequently acquiring an interest in the premises as to the power and authority of the lessee therein, and no lien could attach to the lessor’s interest, not solely because of the stipulation in the lease forbidding it, but because the facts show that! the lessee in making the improvements did not act as the agent of lessor, and the improvements were not made at the latter’s instance. (588, 589)*</p> <p>Musses, C. J. concurred, but resting his conclusion solely upon the clause of the lease that nothing should authorize the lessee to charge any interest of the lessor in the demised premises with any lien or encumbrance. The lessee, his honor said, was not of the class mentioned in Rev. Stat. Sec. 4025; the agency of the lessee, if any existed, was created by the lease, and was, of course, subject to the limitations there set down; that those dealing with him, having notice of those limitations, must at their peril observe and keep within the limits of his authority; that the lien laws of this state do not render such a stipulation between lessor and lessee void or ineffective; any such legislation, if constitutional, which his honor seems to doubt, must declare the prohibition by express words, or necessary implication.</p> <p>As to the notice required by Rev. Stat. See. 4029, his honor said it could not be required as to anyone having already notice that the lessor’s interest was not chargeable, and the record of the lease, authorized by Rev. Stat. Secs. 694, 707, was notice to all the world that the lessor’s interest was nw-. to be subjected to a lien, for any improvements made by the lessee.</p>