Volume 59 — Colorado Reports

<p>Error to Rio Grande County Court. Hon. Thomas Shervin, Judge.</p>

<p>1. Criminal Law — Information—Requisites. Every indictment or information should allege facts sufficient to identify the particular crime charged and distinguish it from every other infraction of the same statute, in order to acquaint the accused with what in particular is charged against him, enable him to prepare his defense, and protect him against a second prosecution upon the same charge (Constitution, art. II, see. 16). The doctrine of Langan v. People, 32 Colo. 414, is not to be extended. (4, 5.)</p> <p>2. - Unlawful Sale of Intoxieati/ng Liquors. Where the offense consists in a sale within a prescribed distance of a particular building, or place, or by a common dealer, or in keeping liquors for sale, the information need not set forth the name of any purchaser; but where each sale is a separate offense, subjecting the offender to a separate penalty, it is essential that the name of the vendee, or other facts, sufficient to its adequate identification, be set forth. (6, 7.)</p> <p>An information charging merely the sale of intoxicating liquors within the limits of a city named, “while it was anti-saloon territory,” not giving the name of any purchaser or other facts to identify the charge, affords the accused no information of what is alleged against him, and is vicious. Reasons set forth for requiring particularity, where, as in the instant case, the accused is a licensed pharmacist and the statute allows sale upon the prescription of a licensed physician. (3, 9.)</p> <p>3. Constitutional Law — Local Option Statute. The provision of the Local Option Statute making the master liable for sales by the servant is not unconstitutional. (16.)</p> <p>But it seems that either express or implied authority in the servant must be shown, to render the master liable. (16.)</p>

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

<p>1. Railway Company — Operating Upon the Tracks of Another Company, owes to the employees of the latter, engaged in the, performance of their duties, the same care which it owes to its own employees under like circumstances. (33.)</p> <p>2. ——■ Servants Employed Upon the Track, must keep such a lookout for the approach of trains as a prudent man would in like case; but they are not under duty to pay the same strict attention to the possible approach of a train as one who enters upon the tracks, not under any call of duty; and whether one so employed is guilty of negligence in failing to note the approach of a train is generally for the jury. (34.)</p> <p>The evidence examined and the alleged contributory negligence of the injured held properly submitted to the jury. (39.)</p> <p>3. - Duty Towards Trackmen. It is the duty of a railway company to exercise reasonable care, in the operation of its trains, to avoid injury to section men, and others whose duties require their presence upon the track. (35-39).</p> <p>The deceased, a section foreman employed in the yards of another company where defendant operated its trains, was run down and killed by one of defendant’s trains. There was evidence tending to show that the crew of defendant’s train knew in advance; or had reason to believe, that deceased would be working at the place where he was at the time of the accident; that the conductor and one brakeman hed left the train; that it was backing, and no one was at its rear; that another train was moving upon an adjacent track, and that no signal whatever was given by defendant’s train. Held that the question of defendant’s negligence was properly submitted to the jury; that the evidence presented a proper ease for the application of the doctrine of Last Clear Chance. (39.)</p>

Hon. Alexander D. Jameson, Judge. Action for divorce by the husband against his wife. The wife answered, and by cross-complaint prayed for 'a divorce. The* court submitted to the jury the following forms of verdict: Guilt or innocence of the defendant; guilt or innocence of plaintiff on the cross-complaint, and guilt or innocence of both parties.

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

<p>Error to Denver County Court. Hon. G. W. Dunn, Judge.</p>

<p>Error to Garfield District Court. Hon. John T. SHUMATE, Judge.</p>

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

<p>1. Appeals and Error — Party Bound by Position Taken Below. One who goes through the trial upon the theory that a certain matter is in issue will not be heard to say, in the court of review, that there was no such issue. (68.)</p> <p>2. Former Recovery — When a Ba/r. A judgment bars a seeond action only when the latter is between the same parties, and upon the same cause of action; or where the seeond action, being founded upon a cause of action other and different from that involved in the first, the issues presented in the second were in fact involved and determined in the first. (68-70.)</p> <p>3. -Burden of Proof. The burden of establishing the identity of the issue determined in the former action with that Involved in the second is upon the party pleading the bar, when the scope of the former contest does not otherwise appear. (69.)</p> <p>A servant employed at a monthly salary sued for the salary of a certain month. The answer pleaded a discharge for cause. The servant in his reply set up a judgment in his favor, in an action to recover the salary accrued in a previous month, under the same contract of employment. Beld, that the causes of action were different, and no evidence being given as to what was in issue and determined in the former action, and this not appearing by the record, that plaintiff had failed to establish his reply. (69.)</p> <p>4. Foreign Corporations- — Engaged Solely m Interstate Commerce are not within e. 102 of the acts of 1911. (71.)</p>

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

<p>Error to Teller District Court. Hon. J. E. Little, Judge.</p>

Hon. J. E'. Rizer, Judge. The question involved is the validity of taxes for the years 1912 and 1913, levied for a high school located at La Junta, in district number 11, Otero County. The trial court held the taxes valid.

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

<p>1. Statutes — Construction—Must—May. To construe “must” as “may” is allowable only where the context requires sueh construction. (109, 110.)</p> <p>2. Denver — Charter Construed — Parts Fund Tase. Under see. 104-A of the charter of Denver, the City Council is under duty to levy annually, for five years succeeding the adoption of this section, a tax of one-half mill on the dollar of the taxable values within the city. (110, 111.)</p> <p>In view of the succeeding provisions of the section, expressly allowing an abatement of the tax, or its abolition, after five years, or in ease of a bond issue, and the provision that the limitation in see. 212 shall not apply to the special park levy, and considering that if the council may, in their discretion, abate the tax, they may, in the exereise of the same discretion, increase it at their pleasure, it is impossible to conceive that any discretion is réposed within the council as to the amount of this special levy. (110, 111.)</p> <p>The fact that when the section in question was adopted, the practice of the assessors was to estimate property at one-third its value, in violation of their prescribed duty, is immaterial. The circumstance that the section in question has been in force for nearly three years, with no attempt to amend or repeal it, is persuasive that it accords with what the people intended in its adoption. (112.)</p> <p>The fixed levy for the five years is not to maintain an existing improvement, but to create a fund for the future acquisition and improvement of lands for parks, parkways and highways, without the city limits.</p> <p>And a fund is to be created whether any of it is expended within the period fixed for its creation or not.</p> <p>The park commission are not required to acquire or improve any lands, within any set limit of time, but may wait until the entire fund is provided before the expenditure of any part of it. (111.)</p> <p>3. Constitutional Law — Charter of Denver. Section 104-A of the charter of Denver is not in conflict with see. 4 of art. XX of the Constitution, and is expressly validated by the Home Rule Amendment, Const., sec. 6, art. XX (Laws 1913, 669). (114.)</p> <p>4. Mandamus — Where the Writ Lies — Discretion. Where the municipal authorities refuse to levy a special tax expressly commanded by the charter of the municipality, mandamus is the proper remedy to compel their action. There is no abuse of discretion in the allowance of the writ' in such case. (116.)</p> <p>Gabbert, C. J. and Bailey, J. dissented.</p>

<p>1. Constitutional Law — Loan of School Funds. The provisions of Rev. Stat., sec. 5207, making each county liable to the state for losses incurred by the loan of the school fund in such county, is in violation of see. 1 of art. XI of the Constitution. (122.)</p> <p>2. - Statute Unconstitutional in Part. Where one section of a statute, found to be beyond the legislative power, is. of such importance that plainly the aet would not have passed without it, all those provisions relating to the matter of the section condemned must fall with, it: e. g., all the provisions of c. 134 of the Laws of 1905 (Rev. Stat., sees. 5198-5212) for the loan of the School Fund. (123.)</p>

<p>Municipal Corporations — Sow Far May Exercise the Power of Eminent Domain. A municipal corporation may exercise the power of eminent domain only so far as expressly conferred; and all constitutional and statutory conditions and limitations must be strictly pursued.</p> <p>No statute authorizes the condemnation of a public stream as a conduit for municipal sewage.</p>

<p>1. Appeal and Error — Verdict on Sufficient Competent Evidence, though conflicting, will not be disturbed. (126, 127.)</p> <p>2. Evidence — Burden of Proof. Where goods bailed to a common carrier in good condition are delivered by it in damaged condition, the burden is upon him to show that he was guilty of no fault or negligence contributing to the damage. (127.)</p> <p>3. Instructions — To be Taken as a Whole. The refusal of an- instruction, the substance of which is given in another form, is not error. (127.)</p> <p>4. Common Carrier — Stipulation as to Estimate of Damage. A stipulation in a bill of lading that the amount of any loss or damage shall be computed on the basis of the value of the goods to the consignee at the place and time of shipment, including freight charges prepaid, when fairly and freely entered into, is valid, though not supported by any reduced rate. (128-130.)</p> <p>5. -Damages — Freight Paid by Carrier. Consignees were not permitted to inspect the goods until the full amount of the freight charge was first paid. They were found damaged, and were disposed of for less than the amount of the freight. Held that the amount of the freight paid was to be. taken into consideration in estimating plaintiffs’ damages, with the same effect as if it had been prepaid. (130, 131.)</p>

<p>1. Judgment — Vacating—Pleadings and Proof. A taxpayer assailing as fraudulent a judgment against the county must allege (1) fraud actual or constructive; (2) that the judgment was the result thereof, and but for the fraud could not have been recovered. (133, 134.)</p> <p>Bill to vacate a judgment recovered upon certain county warrants, alleging (1) that certain of the warrants were in excess of the estimated revenue of the county; (2) that others were drawn against funds not existing. nor authorized (3) that there were no Yunds in the treasury. No attempt was made to show that the claims upon which the warrants were issued were invalid. Seld that inasmuch as the complaint stated no fact that would, if presented in the original action, have compelled a different result, it stated no cause of action. (133, 134.)</p> <p>2. -Consent to a judgment upon a just cause of action is entirely proper and legitimate. (134.)</p> <p>3. Pleadings — Amendment—Second Amendment Befused. Plaintiff, having been once offered the opportunity, declined to amend its complaint. Judgment in its favor was reversed, with directions to dismiss the action, the court saying that plaintiff having declined one opportunity to amend, should not have another. (138.)</p>

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

<p>Judgment Upon the Pleadings — Not Allowed, where there are pending material issues of fact. Judgment for defendant is not to be had, even for substantial defects in the complaint, where it does not affirmatively appear that plaintiff is without right.</p>

<p>1. Statutes — Construction. To a statute adopted from another state, and which had there been construed in the court of final resort, the general assembly added a proviso. Held to manifest a well defined purpose, and that the construction of the proviso should be consistent with such purpose. (154.)</p> <p>2. Receivership — Debts for Labor — How Far Preferred. Under the proviso to sec. 3 of c. 70 of the Laws of 1903 (Rev. Stat., secs. 6998-7000), a mortgage duly recorded, and for a debt actually existing, takes precedence of claims for labor subsequently performed. (155, 156.)</p> <p>The result is the same even though the proviso be rejected as insensible. (155.)</p> <p>The act contains no provision as to the time in which exceptions to claims must be filed. (158.)</p> <p>3. -Debts for Labor and the Like Allowed in Equity Against a Public Corporation in Preference to a Mortgage. To warrant such allowance, the public character of the corporation must affirmatively appear. That the words “Railroad Company” are found in the corporate name is not sufficient. And it must be shown that the elaims were valid and subsisting obligations of such corporations, when presented. (157.)</p> <p>Even if specific objections be necessary, an objection assigning as ground that no evidence was produced to show what services, if any, were .rendered, or that the court refused to hear testimony, ruling that the failure to file exceptions with the receiver barred all question, though there was no evidence as to when the claims were filed, or that the objecting party had notice of the filing, is sufficient. (157.)</p> <p>4. Mortgage Sale — Disposition of Proceeds. The purpose of a foreclosure sale is to procure funds with which to pay creditors, according to their respective adjudged priorities, legal or equitable.</p> <p>No creditor is to be displaced, or deprived of his right, without evidence of his consent to the preference-of another. (158.)</p>

<p>Criminal Law — Evidence. To warrant a conviction for the sale of a powder or mixture containing cocaine, the fact that such powder or mixture contained the prohibited drug must be established beyond a reasonable doubt.</p> <p>The testimony examined and held entirely insufficient to sustain the conviction.</p>

<p>1. Tax Titles — Tax Sale — P)feet on Previous Tax Sale. A tax sale, regular in all respects, obliterates a title acquired under a previous sale.</p> <p>2. Ejectment — Outstanding Title. Title outstanding in a third person defeats plaintiff's action.</p>

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

<p>1. Damages — Measure Of — Growing Crops Destroyed. The measure of damages for the destruction of a growing erop, is the value of the crop, at the time of its destruction, if the injury had not oceured. (171.)</p> <p>2. -Damage to Lands by Seepage — Measure Of, is the difference between its value, immediately before and immediately after the injury. (174.)</p> <p>3. Evidence — Relevancy. In an action for the destruction of growing crops by the diversion therefrom of the water necessary for the irrigation thereof, evidence as to the condition of the erop, the probability of its ultimately coming to maturity, the probable yield, the cost of harvesting, the climatic condition of the season, the yield of like erops upon adjacent lands, is admissible upon the question of damages, — but only for the purpose of determining the value of the crops, as it was at the date of the injury. (171.)</p> <p>In an action for injury to lands by seepage negligently allowed from an irrigating ditch, the reasonable cost of restoring the land to its former condition is relevant to its value after the injury. (174.)</p> <p>-4. Irrigation — Liability of Ditch Owner for Seepage.- The owner of a ditch is not liable for damages occasioned by seepage therefrom, unless attributable to negligence in the construction or operation of the ditch (Rev. Stat. secs. 993, 3233). Teller, J., dissented. (172.)</p> <p>The question is not affected by see. 15 of Art. II of the constitution. (173.)</p> <p>5. Constitutional Law — -Talcing Private Property. See. 15, of Art. II of the constitution is limited to proceedings under the statute of eminent domain. It has not the effeet to charge the owner of an irrigating ditch with the damages occasioned by seepage therefrom, to the lands of another— no negligence being shown. Seott, J., dissented. (173.)</p> <p>6. Parties — Non-Joinder Must Be Pleaded. Action for an injury to lands by seepage negligently permitted from an irrigating ditch. If the defendant would avail himself of the non-joinder of one having a mortgage upon the lands, he must plead it. (174.)</p> <p>7. Judgment — Protection of Absent Parties. Action for an injury to lands by seepage from defendant’s ditch. Held that the court might, by an order as to the disposition of the recovery, afford defendant adequate protection against the non-joinder of one having a mortgage upon the land. (174.)</p>

<p>1. Denver — Public Improvements — Power of the Corporation. The municipality must, through its proper officers, determine the necessity for a public improvement, such as the opening of a street, and the extent thereof. (194.)</p> <p>2. —;—■ An Ordinance the Foundation of the Proceedings. .The municipality can act only by an ordinance, and a valid ordinance must be the foundation of the proceedings. (195.)</p> <p>3. -- Changes in Proposed Improvements, can be effected only by an ordinance. Neither the commissioners appointed to assess the damages and benefits which will be occasioned to property owners, by the improvement, nor the court in which the proceeding is had, have power to change the improvement, either as to its nature or extent; nor to ascertain supposed benefits or damages which will result from an improvement other or different from that defined in the ordinance. (195-197.)</p> <p>Commissioners appointed under an ordinance providing for the opening of a particular street, between other streets named, reported the damages and benefits which would be occasioned by opening the proposed street through a portion of the distance set down in the ordinance. The city attor^ ney thereupon dismissed the proceeding, so far as it related to properties beyond the limits upon which the commissioners had reported. Seld that sec. 17 of e. 129 of the Laws of 1911, gave no power to the city attorney to so modify the proposed improvement; that as improvements of the character in question are by the constitution and charter committed to the Board of Public Works, and the City Council, to eonstrue the statute in question as conferring upon the city attorney the authority which he had assumed, would render it unconstitutional. (197.)</p> <p>The whole proceeding was declared without validity, the judgment reversed, and the court below directed to set aside the report of the commissioners and its decree based thereon. (198.)</p>

<p>1. Judgment — Construction of Record. A railway company applied by petition to condemn certain lands, and an order was made authorizing it to take immediate possession, upon deposit in the court of a sum of money mentioned, "to be held subject to its order, and to abide said proceeding.” On the 14th of August following the petitioner was allowed to dismiss its petition, and its application for leave to withdraw the deposit was "reserved for further consideration.” On the 9th of January following, a second order was entered, allowing the discontinuance of the petition, but directing payment of the deposit to the respondent land owner. Held that the order of August 14th left the right of the parties as to the deposit undetermined, and that the order of January 9th was intended as a final disposition of the whole matter. (202-204.)</p> <p>2. Eminent Domain — Right of Petitioner to Discontinue. The settled rule is that, in the absence of a statutory provision, the petitioner may discontinue the proceeding at any time before the right of the property owner to compensation has become complete; but to so abandon the proceeding does not relieve the petitioner from such costs and damages as the property owner may be lawfully entitled to recover. (205.)</p> <p>Doubted whether the court has power to impose a condition to the discontinuance of the proceeding. (204, 205.)</p> <p>3. Deposit — Disposition Of. An order for the payment of the petitioner’s deposit of $500 to the land owner, upon his mere statement that he has been compelled to employ counsel, and "to have his representative come to Trinidad, all at great expense,” and that the damages to which he has been put are "largely in exeess” of the deposit, not showing what he has paid his attorneys, or from whence the agent came, and without any testimony heard, was held without the authority of law, reason or justice. (206.)</p> <p>4. -Purpose of the Deposit. Under Rev. Stat. secs. 2420, 2456 the sole purpose of the deposit required is to make seeure the compensation awarded for the land taken. The court has no authority to require a deposit to be applied upon costs. (207.)</p> <p>The deposit remains the property of the petitioner, to be applied only to the satisfaction of the damages, occasioned by the taking of the land. (208.)</p> <p>5. -- Attorney’s Pees. On the disepntinuanee of a petition instituted in good faith the land owner is not entitled to an award for his attorney’s bill. (209.)</p> <p>6. Wrongful Motive of a Lawful Act — Effect. The motive of an act furnishes no cause of action unless attended by some legal wrong. (212.)</p>

<p>MANDAMUS-'-Discreficm. Petition for a mandamus to compel a municipal corporation to adopt an ordinance for the payment of damages awarded to petitioner in condemnation proceedings. The pendency in the Supreme Court of proceedings, the purpose of which is to invalidate the proceedings in condemnation held a sufficient ground to deny the writ.</p>

<p>Error to Denver County Court. Hon. William C. Hood, Judge.</p>

<p>1. Trials — Questions for Jury. Disputed questions of fact are for the jury, e. g., in an aetion for negligence, the question whether plaintiff was in 1he exereise of reasonable care. (219.)</p> <p>And whether the time intervening between the master’s promise to amend a defect in his ways or appliances, and the injury attributed to such defect, was reasonably sufficient to permit the corretion to be made. (220.)</p> <p>And in the servant’s action for the master’s negligence in not repairing a defect in his ways or appliances, the question whether the servant relied upon the promise, or assumed for himself the risk of injury. (221.)</p> <p>2. Evidence — Admissions by Conduct. The promise of the pit boss in a coal mine to repair a defect in the mine track is a clear recognition of a duty resting upon the mine owner to make such repair; and there being nothing to the contrary in the testimony, the direction of the pit boss to plaintiff not to move his car upon the track until'the repairs should be made, was held to sufficiently indicate that the promise to repair was made for the safety of the employe. (219, 220.)</p> <p>3. Master and Servant- — Master’s Promise to Repair Defects. Where, upon the servant’s complaint, the master makes an unconditional promise to repair defects in his ways, appliances, or the like, the risk of the defect is cast upon the master until the lapse of sueh time as precludes all reasonable expectation that the promise will be kept, unless the danger is so manifest and imminent that no person of ordinary prudence would risk injury from it. (221.)</p> <p>And after a time sufficient to accomplish the repair has elapsed the servant may assume, without investigation, that the promised repairs have been made. (222.)</p>

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

<p>Municipal Corporations — Disconnecting Territory. Petition to disconnect- certain lands of petitioner contained -within the limits of the town. More than three years prior to the filing of the petition, a portion of one of the streets upon which the lands abutted, was graded, and a town ditch, extending for two blocks or more along this street, where the lands abutted, had been cleaned, twice in each of the four preceding years; and both this and another street, upon which the land abutted, had been worked, leveled, and cleaned from time to time for more than three years. Held that under Rev. Stat. sec. 6735 the petition must be denied.</p>

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

<p>Limitations — Color of Title — Payment of Taxes. Bill to Quiet Title. Both parties claimed under The Denver Land & Security Company, — plaintiff under deed of trust executed by that company, and a sale and conveyance of the lands under the powers of the deed of trust, the trustee's deed bearing date May 4, 1899;- the defendant under a conveyance by warranty deed from one who derived title by conveyance of the same company, subsequent to the execution of the deed of trust. Plaintiff's action was instituted June 13th, A. D. 1911. Defendant had paid taxes continuously for more than seven successive years after the acquisition of her title, and prior to the institution of the action. The court below found that defendant’s title was acquired in good faith, and that the lands had always been vacant. It was contended for plaintiff that because defendant’s title came from the same source as that of plaintiff, and by a conveyance subsequent in date to the deed of trust under which plaintiff claimed, defendant’s claim was not to be regarded as hostile to that of plaintiff, and that she was not entitled to the benefit of the seven years’ limitation. (Rev. Stat. sec. 4090.) This contention was rejected. Decree quieting title in defendant affirmed. (246, 247.)</p>

<p>1. Constitutional Law — Police Power — Keeping Dogs. Nothing is more firmly settled than that the police power extends to the regulation of the keeping of dogs, and that the legislature may confer upon cities and towns such parts of the police power as it may deem proper. (249.)</p> <p>2. Denver — Charter Construed. A charter power to ' ‘ enact and enforce all ordinances necessary to protect life, health, and property, to declare, prevent, and summarily abate nuisanees * * * to enforce ordinances by ordaining fines, and imprisonment, or both,” within specified and reasonable limits as to amount and duration (City Charter sec. 17) is sufficient to warrant an ordinance imposing a license fee for the keeping of a dog, and a fine for the non-payment of the fee. (250.)</p> <p>3. Municipal Corporations — Dnforcement of Ordinances — Notice. Before one supposed to own a dog can be arrested and tried for his failure to pay a license tax prescribed by ordinance, he must receive official notice of his liability, and opportunity to pay the tax, or to controvert his liability. (253,</p> <p>Oral notice is not sufficient. (252.)</p> <p>Gabbert, C. J., Bailey, J., and Scott, J., dissent.</p> <p>4. Notice — Required by Statute. A notice required or authorized by statute, in any legal proceeding, must be in writing; especially is this so where a statute or ordinance provides that the officer instituting the proceeding shall “serve” the notice. (252.)</p> <p>5. -Waiver of Notice. A notice required by statute or ordinance as the basis of a prosecution thereunder, cannot be waived. (253.)</p>

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

<p>T. "Evidence — Competency. Plaintiff, in an effort to contradict a witness for defendant, was allowed to show that in the trial of another action, involving a different issue, another witness, not shown to be -dead or beyond the jurisdiction;,had-testified to facts disclosing a knowledge on his .part of the particular matters in controversy in the pending action, and that they were otherwise than as testified by defendant’s witness. Held error. (264-' 267.) r<¡¡... b b .... .jw-n'lL , • ' ■ ,</p> <p>In an action by an attorney for fees, as tending to show the experience, skill and ability of the attorney, evidence was received that the client, in a transaction long since closed, and in respect of which the attorney was not demanding compensation, had, upon one investment of $4,200, realized in eighteen months a profit of $100,000. Held incompetent and prejudicial. (269.)</p> <p>The fee received by the attorney in sueh past transaction was also inadmissible. (270.)</p> <p>The. attorney and the client had entered into a contract, in the nature of a partnership, touching certain investments in lands in Florida. The contract had been annulled by the judgment of the Supreme Court of that state, and the attorney was sueing upon a quantum meruit for the value of his services to the client in the matter of the Florida investments. Held that conversations of defendant relating to the contract so annulled and the conduct of the parties thereunder were inadmissible. (272.)</p> <p>Conversations between the attorney and the client as to the compensation of; the latter, which conversation led up to the contract between them, afterwards annulled by the court of Florida, he'd admissible, as an. admission of the client as to the value of the attorney’s services. The subsequent reduction to writing, and that the court of Florida had declared it invalid, not being sufficient to exelude it. (272-276.) 1 ■ ■ ■</p> <p>The attorney demanding compensation for his services to the client in the purchase and sale of lands in Florida, it was held competent for the plaintiff to show the value of the client’s holdings in Florida, purchased and partly disposed of during the attorney’s employment. The magnitude of the enterprise, and the results obtained, being factors in determining the measure of the attorney’s compensation. (277, 278.)</p> <p>So the amount received by the c'ient from a corporation which he had organized for dealing in the Florida lands. (278.)</p> <p>2. Attorney and Client — Non-Professional Services Rendered by the Attorney, a. y., in a business capacity, and incident to the matters.and causes in which he acts professionally, may be allowed for and recovered by the attorney in the same action in which he demands compensation for his professional services. (277.)</p>

<p>1. Juror — Opinion as io Capital Punishment — Challenge for Cause. In the trial of. an information or indictment for homicide committed in the perpetration of highway robbery a juror who declares that he will not, under any circumstances, agree to a verdict of guilty, and fixing the penalty of death, is properly challenged for cause. Demato v. People, 49 Colo. 147, followed (281.)</p> <p>2. Criminal Law. — Evidence of Other Crimes. The prisoner was charged with homicide in the attempt to commit highway robbery. No robbery was in fact committed, but it appeared that the deceased was ordered by prisoner to hold up his hands, the fatal shot was fired immediately thereafter, and the prisoner, at once made his escape. Held that to show the intent of prisoner -to commit a robbery, evidence of several robberies committed by him, shortly before and shortly after the homicide, was properly received. (282, 283.) : "</p> <p>• The authorities as to the admissibility of testimony of this character cited. (283;)</p> <p>Where the prosecution have the prisoner’s confession, good -practice seems to require that it should be offered in the first instance, and that if received) no evidence of other crimes should be put in unless clearly necessary.</p> <p>A failure to follow this course is not error. (283, 284.)</p> <p>3. .-r- Misconduct ■of District Attorney. Prejudicial and improper remarks of, the district attorney in his closing address to the jury will not reverse a conviction unless, the misconduct of the, officer was so gross as to have'probably influenced the jury.</p> <p>In' the' trial of an information' for murder the district attorney, insisting upon the death sentence, said to the jury that a sentence for life “means that a,fter awhile he gets out * * * he is given time for good behavior and in a few years is out again.” This remark being objected to by the prisoner's''counsel was immediately withdrawn, and the jury were directed by the court to disregard it. The testimony establishing the guilt of the accused being so clear and convincing that no other verdict was possible, held that the prisoner had not been prejudiced by the prosecutor’s conduct of which he complained., (.286, 287.) . ' , ■</p> <p>The duty of the district attorney to conduct himself, not ás a ’partisan, eager to convict, but as a quasi judicial officer; whose sole ’duty is td- aid the court and jury in arriving at a just result in every case, again set forth and enlarged upon; and regret expressed that similar previous admonitions continue to be disregarded. (287.)</p>

<p>Conditional Judgment — Noiv-Performance of Condition — Effect. Decree quieting the title to lands in plaintiff, but upon condition that by a day specified he should pay into the registry of the court, for the use of defendant, a specified sum of money, and that in default of such payment the title should be quieted in defendant. Pending defendant’s appeal from this decree it being made to appear that plaintiff had not performed this condition, the cause was remanded, with directions to vacate the decree in favor of plaintiff, and enter a decree quieting title in defendant. (289.) .</p>

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

<p>Error to Boulder District Court. Hon. Harry P. Gamble, Judge.</p>

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

<p>Judgment — By Default — -Order Vacating — Defenses Admissible. Where by the order vacating a judgment by default, the defendant is permitted to set up by his answer only the matters of defense alleged in his motion and affidavit of merits, he will not be heard to interpose other and different grounds of defense. (315.)</p>

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

<p>1. Criminal Law — Information—Recitáis. A positive averment is not transformed into a recital by the mere fact that it is preceded by a "Whereas. ’ ’ Whereas may import ‘1 when in fact ” or " while on the contrary. ’ ’</p> <p>An information for obtaining goods by false pretenses averred that defendants falsely, etc., pointed out. and exhibited to the prosecuting witness certain lands, reservoirs, reservoir sites, etc., "as being” the properties of a corporation named, and that 2,000 shares of the stock of said corporation constituted a valuable interest in the said lands, reservoirs, and reservoir sites; "whereas” the said lands, reservoirs, reservoir sites, etc., were not owned by the corporation, as defendants at the time well knew, and that by-means, etc., defendants procured of the prosecutor $200.00 of the moneys, goods and chattels, etc. Held that in view of the provisions of Rev. Stat. see. 1950 the words of the information, fairly interpreted, constitute a positive averment that the properties designated, etc., were represented by defendants to be the property of the corporation named.</p> <p>The information averred that the prosecutor, relying upon the false representation set forth and induced thereby, purchased of ■ defendants certain shares in the corporation for $2,000, and as part payment therefor made and delivered to one of them his cheek for $200, which was thereafter by defendants converted into cash, and to their own use. Held to sufficiently show that by the false practice of defendants the prosecutor had been deprived of his property, and suffered a legal injury, and to bring the case within the statute.</p> <p>2. -Fraudulent Pretenses. One may be actually defrauded without suffering pecuniary loss; and is so defrauded, when by false representations he is induced to part with his property, receiving something substantially different from what lie would have received, had the representations been true.</p> <p>3. -Intent — Innocent Belief in the Truth of the Representation. A corrupt and criminal intent is of the gist of the offense and must be established beyond a reasonable doubt.</p> <p>4. -Immaterial Representations. Information for obtaining the moneys of the prosecutors by false representation as to the holdings of an irrigating company, and what would be acquired by the purchase of stock therein. The prosecutor deposed that the defendants informed him that a certain ranch and spring were no part of the irrigation project, and that no right therein would be acquired by the purchase of the stock. Held that all evidence of representations as to the ranch and spring were immaterial, and should have been stricken out on defendant’s motion.</p>

<p>Attorney — Misconduct—Disbarment. An attorney having wrongfully converted to his own use, moneys of clients which had been deposited with him, in one instance to discharge a judgment against the client, and in others, to pay the costs of actions for which he was employed, but failed to institute, falsely reporting to the clients that the actions had been instituted, was disbarred.</p>

<p>1. Woeds and Phrases — Similar. A thing which is somewhat like another, or resembles it in many respects, is similar thereto. (360.)</p> <p>2. Building and Loan Associations — Foreign. A foreign corporation, authorized by its charter to raise a fund by small periodical payments, from which loans may be made to those who contribute to such funds, and which is conducting a business of this character, is within the concluding provision of sec. 964 of the Revised Statutes, even though not technically a Building and Loan Association. And it is immaterial whether those who subscribe to the fund are members of the corporation or not, or whether the foreign corporation does or does not pursue the precise course of domestic corporations, and take every step which the domestic corporation may take. (362.)</p> <p>The defendant was engaged in issuing and selling Home Purchasing Contracts. Each contract was one of a series of one hundred. To become a member of any series, payment of a designated sum was required; and the holder was required to pay a like installment monthly until eighty monthly installments should have been paid, unless his liability were terminated, at an earlier date, at his option, pursuant to the provisions of the contract. The prompt payment of the monthly installments for six months rendered the holder eligible to receive a loan out of the reserve fund of the series of which he was a member, for the purchase of a home — the loan to be secured upon the home and repaid in prescribed monthly, installments. Held that the general purpose of defendant, and of domestic building and loan associations was identical; and the foreign corporation not having complied with the statute, was liable to ouster by proceedings in quo warranto. (300-3(13.)</p>

<p>Error to Saguache County Court. Hon. M. N. JORDAN, Judge.</p>

<p>1. Mandamus — To Compel Transfer of Corporate Stock, is not to be allowed where the right of the plaintiff is in issue. (369, 370.)</p> <p>2. Corporations — Pooling Stock — Contract of Stockholders Not To Sell Stock. A contract by a corporation and its individual stockholders of the one part, and its fiscal agent of the other, that the former shall not sell, traffic in, or transfer any of their shares, while a contract with the agent for the sale of the treasury stock remains in force, is a valid contract calculated to advance the corporate interest. It affects one who, with notice of the agreement and without payment of a consideration, becomes the assignee of shares of a stockholder who was party to the agreement. (371.)</p>

<p>1. Tax Title — Notice of Sale — Affidavit of Publication, may be made by the foreman who had supervision of the press-room, looked after the insertion of all matters printed in the newspaper, read the proof and attended to the mailing list. (374, 375.)</p> <p>The decision contra, in the same case, 22 Col. App. 511, overruled.</p> <p>2. Supreme Court — Jurisdiction—Error to Cowt of Appeals. A judgment of the court of appeals, the effect of which is to divest the title to lands, unconditionally, involves a freehold, and error lies from this court to review such judgment. (375, 376.)</p> <p>3. Appeals and Error — Law of the Case. The judgment of this court in a former appeal is the law of the case. (376.)</p>

<p>1. Appeals and Error — What May lie Assigned For Error. The propriety of an order requiring plaintiff to amplify his complaint will not be considered, where a demurrer thereto, as amended, was sustained below. The controversy depends solely upon the sufficiency of the amended complaint. (378.)</p> <p>2. Pbincipal and Agent — Agency for the Sale of Lands, can be created only by writing (Rev. Stat. see. 2660). (379.)</p> <p>3. -Construction, of Power to Sell Lands. A power to sell lands is to be strictly construed. Every doubt as to the agent’s authority is to be resolved against the agent and those dealing with him, under the power. (379,' 380.)</p> <p>4. -Power Construed. A writing provided that the agent, should “be at the entire expense of obtaining title * * * from the U. S. Government, and of finding a purchaser, and selling the same; ’ ’ that the agent should receive, for his service, ‘ ‘ one-half of the proceeds ’ ’ of the sale, after paying to the principal a certain price per acre; that the lands should not be sold for less than a specified price per acre, and if not sold within the designated time, “the interest” of the agent should cease. Held that the agent had no authority to execute a contract of sale, binding the principal, but only to find and present a purchaser willing and able to pay at least the price mentioned in the power. Those who deal with the agent who exceeds his power are charged in law with notice of the defect of authority. (380, 381.)</p>

<p>1. Deed — Delivery. A conveyance of lands never delivered' by the grantor is void. (386.)</p> <p>The'testimony examined and held to establish that the conveyance in question was never delivered. (384-386.)</p> <p>2. Pleadings — Motion for Judgment Upon, allowed only when 'it affirmatively appears that the party against whom the motion is interposed is without right. (387.)</p> <p>3. -• Defeats Cured by Pleading Over. Action to annul a conveyance of lands, alleged to have been executed by plaintiff’s ancestor, but never delivered. There was no direct averment that the ancestor had title to the land in his life-time, but this was admitted by the answer. Reid- that' this admission cured the defects of the complaint. (387, 388.) '</p> <p>4. ■ — —- Construed. An allegation that a party “executed” a deed, does not confess its validity or effect, where followed by the averment that it was never delivered. (388.)</p> <p>5. Appeal and Error — Party Bound by Position Assumed Below. Action to annul a conveyance of lands. The complaint alleged that plaintiff’s father died intestate, and “seized” of the lands in question; that the conveyance, though executed by him, was never delivered; that after his death-the grantee obtained possession of the paper, caused it to be recorded, and was claiming the lands thereunder. The answer admitted that deceased was-“owner” of the land until the execution of the deed. Reid to manifest that defendants accepted the complaint as importing that deceased was ‘1 seized as the owner; ’ ’ and the court declined to allow a ehange of defendant’s position in this respect, or to enter into any definition of the term “seized.” (387, 388.)</p>

<p>Error to Douglas District Court. Hon. W. S. MORRIS, Judge.</p>

<p>Error to Fremont District Court. Hon. Charles A. Wilkin, Judge.</p>

<p>1. Judgment — Confessed Under Letter of Attorney, will be vacated and a defense allowed, where application is made in apt time, and the affidavit in support thereof makes out a prima faeie ease of a defense upon the merits. (405.)</p> <p>The affidavit showing that defendant had turned over to plaintiff, property real and personal of a value largely in excess of the amount of the judgment, and all other indebtedness by defendant owing to plaintiff, the court below was directed to vacate the judgment, allow an answer to be filed within a reasonable time, and determine the case upon its merits. (406.)</p> <p>2. -- lime of Application. A motion to vacate the judgment, made within six days after notice of the judgment comes to defendant, is in due time. (405.)</p>

<p>1. Criminal Law — Information—Duplicity. Information for the illegal sale of intoxicating liquors, in anti-saloon territory, charged the accused with acting both as principal and agent in the alleged sale. An objection on the ground of duplicity was held without merit. Where under the statute the offense may be committed in different ways, it is proper to charge it in all possible ways, using the conjunctive where the statute is in the disjunctive. (412.)</p> <p>The sale being charged to have been made, both as principal and clerk, proof of the sale in either capacity sustains a conviction. (412.)</p> <p>2. --- Amending Information. The information charged that defendant, “by himself and another, as principal, clerk and servant," sold to four persons named, “jointly," intoxicating liquors. The district attorney was permitted to amend by striking out the words “and another,” “jointly,” and the names of three of those to whom the unlawful sale was alleged to have been made.</p> <p>Held that no error was committed in allowing the amendment. (412.)</p> <p>Nor in refusing to allow further time to accused in which to move to quash the information as amended, it appearing that sufficient opportunity to move against the information was afforded, in advance of the trial. (412.)</p> <p>3. - Sale of Liquor in Anti-Saloon Territory. In charging a violation of the loeal option statute, by the sale of intoxicating liquors in anti-saloon territory, it is not necessary to set out the initiatory petition, or succeeding steps, by which the district became anti-saloon territory under the statute; nor is it necessary to prove these proceedings, upon the trial. It is sufficient to allege that the sale was made after the qualified voters, at an election held for that purpose, in accordance with the law, had determined that the sale' of intoxicating liquors should be prohibited. (412, 413.)</p> <p>4. - Sale of Beer. Where the information charges the sale of intoxicating liquors, and the evidence shows a sale of beer, it is not necessary to establish its intoxicating property, by evidence. The courts judicially notice it. (414.)</p> <p>5. --Evidence of Sales Not Charged, may be received against the proprietor of the tippling house, to show knowledge and consent on his part. (414.)</p> <p>6. - Consolidation of Informations for Trial. Informations against different persons for like violations of the same statute, may, by consent of the accused, be consolidated for trial. Separate verdicts should be rendered and separate judgments entered thereon. (413.)</p> <p>7. Local Option Statute — Collateral Attach Not Allowed. Collateral attack upon the proceeding under which a district becomes anti-saloon territory will not be allowed in a prosecution under' the statute. (413.)</p> <p>8. Evidence — Objections to Not Made Below, will not be considered in the court of review. (414.)</p> <p>9. Criminal Law — Practice—Judge Invading Jury Boom. It is highly reprehensible for the trial judge to visit and confer with the jury in their retirement, and if it appears that prejudice to the accused in the slightest degree has resulted, the conviction will be reversed. But where the contrary clearly appears, the impropriety may be overlooked. (415.')</p>

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

<p>1. New Trial — Newly Discovered Evidence — Cumulative. Information for wilful murder. The prisoner was an ignorant Mexican, without money or friends. He had been but a short time in the county. Counsel assigned to his defense were able to confer with him only through an interpreter. They were not able to obtain any intelligible information as to his family, past life, or the facts leading up to the homicide. In attempting to establish his insanity counsel were limited to evidence of incoherent conversations, and peculiar actions, during the short stay of the prisoner in the county. An application for a new trial was supported by affidavits showing that for more than five years the prisoner had been subject to occasional periods of frenzy, attributable to a fracture of the skull; that upon these occasions he was entirely irresponsible; that he had even attempted the life of members of his own family. Held, that though the prisoner’s mental condition was a subject of inquiry upon the trial, inasmuch as nothing was shown, or attempted, as to the eause of his insanity, or the injury mentioned and relied upon in the motion, the newly discovered evidence was not cumulative, in such sense as to warrant its exclusion; and as it might have produced a different result, the motion should have been granted. (436-438.)</p> <p>2. Evidence — Bes Gestae — Information for Murder. The prisoner had, shortly before the homieide, assaulted and stabbed, one Kelley. The deceased, a police officer, was pursuing, and attempting to arrest him. Evidence as to a difficulty and altercation with Kelley, shortly previous to the assault upon him, the fact of the assault, and the prisoner's attempt to escape, were part of the res gestae, and as sueh, admissible. (438, 439.)</p> <p>Testimony as to the sufferings of Kelley, from the wound given him, held inadmissible. (439.)</p>

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

<p>1. Evidence — Competency. Replevin for plaintiff's wearing apparel, alleged to have been wrongfully and maliciously taken from her. A re-delivery bond, given by defendant, was held not admissible to show malice on his part in the taking.-</p> <p>In giving the bond defendant was in the exercise of a lawful right, and his motive is not a subject of challenge. (452.)</p> <p>2. Apartment House — Keeper No Lien on the Tenant’s Goods. The keeper of an apartment house, letting furnished rooms to those who occupy them as a home and residence, keeping house as if living in their owd premises, is not entitled to.a lien upon the goods of the tenant under Rev. Stat., sec. 4013. (452-454.) ' ! '</p>

Hon. John E. Little, Judge. Plaintiff in-error filed a claim against the estate of Clark, deceased, which was founded upon a note in the sum of $3,000, signed by Clark as surety.

<p>1. Corporations — Liability for Torts — Conspiracy. A corporation is liable in- damages for torts committed in pursuance of a conspiracy to which it is party, to the same extent as individuals. (463.)</p> <p>Those engaged in a conspiracy may resort to different means, at different times, to effect the object of the combination, yet, even though their several acts are injurious in very unequal proportions, the liability rests upon each and all. (464.)</p> <p>The evidence examined and held to charge all the defendants. (464.)</p> <p>2. - Liability for Acts of Agents. A corporation may, through those in charge of its affairs, be guilty of malice and oppression, and’ liable in actual and exemplary damages. (463.)</p> <p>And if the agents, acting within the apparent scope of their authority, do injury to another, the corporation is liable, even though the agents exceed their authority, or disobey their instructions. (463.)</p> <p>3. - Imputation of Agent’s Malice. If the wrongful act .of the agent is prompted by an improper motive,’ such motive is imputed to the corporation. (463.)</p> <p>4. Torts- — Connivance or Consent. All who command, advise or countenance the commission of a tort, or who, it being committed for their benefit, approve of it after it is done, are liable in the same manner as if they had performed the injurious act with their own hands. (464.)</p> <p>5. - Mitigation op Damages — ■Provocation, to avail in mitigation of damages, must be so near in point of time to the act fdr'which'fl'ani'a'^’es ’aré demanded as to warrant the presumption that the wrongful’ act was 'committed under the immediate influence of the passion engendered by the preceding provocation. If time for reflection had intervened the wrongful acts of defendant' are attributed, not to the provocation, but to the spirit 'of revenge. - (468.) - . ' . ’ ■ ■</p> <p>A .publication four days prior to the wrongful acts complained of, held inadmissible to mitigate the damages. (469.)</p> <p>6. - Offer to Return Goods, which the defendant has converted, does not deprive the owner of his right to the reasonable value of the goods. (473.)</p> <p>7. Instructions — Construed. Aetion for conversion of plaintiff's printing plant, and the destruction of her business. The jury were told that if they should find for the plaintiff, she was "entitled to the reasonable value of such property which you may find from the evidence was converted by defendants, and reasonable damages for the destruction of her business.” Held, that neither the conversion of plaintiff’s goods, nor the destruction of her business, was assumed by the instruction.</p> <p>That the instructions do not limit the plaintiff’s recovery to the amount demanded in the complaint is of no consequence, where the recovery is less than the amount so demanded. (473, 474.)</p> <p>8. ' --- Objections To. Where an instruction contains several propositions, some of which are sound in law, it is the duty of counsel objecting thereto to point out specifically the part of the instruction regarded as erroneous. An objection that the instruction "is not a correct statement of the law” is too general to require attention. (471.)</p> <p>Where a general objection to an instruction is followed by a specific statement of the defect alleged, the general objection is absorbed in the specific. (473.)</p>

<p>1. Mechanic’s Lien — Lien Statement — Non-Lienable Articles. A lien statement -whieh includes articles for which no lien is allowed by statute will not deprive the claimant of his lien for articles whieh are within the statute, provided the statement was not wilfully false. The claimant will hie permitted to make the neeessary segregation, by his proofs, and the improper items being rejected, a lien will be declared for the residue. (476.)</p> <p>2. -Statement — Name of Owner. Prior to December, 1908, The Lucania Tunnel, Mining & Drainage Co. held title to the premises upon whieh the lien was claimed. In that month there was a reorganization of the enterprise, and the title passed to The Lucania Tunnel & Mines Co., the officers and management remaining the same. The sign at the premises, and the sign upon the windows of the office, remained, bearing the name of the original corporation. The lien statement claiming for supplies furnished, subsequent to this change of ownership, named the original company as the ‘ ‘ owner or reputed owner. ’ ’ It was accepted by the. agent of the new company without objection or protect. The lien claimant had acted in good faith in. so designating the owner. A deeree establishing the lien was affirmed! (479-482.)</p> <p>3. - Construction of the Statute. The statute is to receive a liberal construction. Mistakes whieh do not tend to deceive, ■ may be overlooked. (477, 478.)</p>

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

<p>Wills — Construed. The testator especially commended to his executor one Mary McCarthy, an elderly cousin, expressing his earnest desire to so provide for her that she might be relieved of anxiety in her old age, and directing them to purchase ‘ ‘ any mortgage that may be upon her property, ’ ’ and hold it during her lifetime without exacting interest, in trust for a niece named, after the death of the said Mary McCarthy. He further directed the executors to improve the property, expending in such improvements, and in the purchase of the mortgage, the sum of $5,000.00, authorizing them iu sell “sufficient of my London-Arizona stock, to carry out this provision,” whenever it could be sold for not less than half its par. By another clause of the will he provided that certain shares of mining stock should be held in trust for providing prizes to bo awarded to the pupils of the public schools of the Denver Sehool District, expressing the hope that “the example will spread till it covers the country.” Hold, that the bequest to Mary McCarthy was not a specific legacy of the mere shares of stock mentioned, but the provision in her behalf was a charge upon the whole estate.</p> <p>That the sehool district had no claim upon the body of the estate; that its rights were absolutely confined to the mining shares mentioned. (495, 496.)</p>

<p>1. Statute of Frauds — Debt of Another. The fact that a father has paid the bill of a physician for attendance upon the family of his son does not render him liable for the physician’s bill for subsequent like attendance. (498, 499.)</p> <p>2. -Part Payment of the Debt of Another, does not imply a promise to pay the residue. (499.)</p> <p>3. Evidence — Admissions—Letter Construed. The father and his son were associated in business. A physician rendered a bill against the son for professional services rendered to the son’s wife, and the father sent a eheck of the firm for a portion of the bill, in a letter, complaining of the amount of the bill, but concluding “I will do the best that I can. You know Will hasn’t anything.” Judgment against, both father and son reversed, and the court below directed to dismiss the action against the father. (498, 499.)</p>

<p>Error to El Paso District Court. Hon. J. E. Little, Judge.</p>

<p>Error to Denver District Court. Hon. John A. Perry, Judge.</p>

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

<p>1. Irrigation — Reservoirs—Legislative Regulation. The state has sueh an interest in the construction of reservoirs as to justify the statutory provisions declaring what shall constitute proper construction, and when such' a structure is deemed complete. (Rev. Stat., sec. 3205.) (517, 518.)</p> <p>2. Contract for the Construction of a Reservoir — Interpretation. The provisions of the statute (Rev. Stat., sec. 3205) are to b'c read into every contract for the construction or enlargement of a reservoir. (518.)</p> <p>One agreeing to take shares in a reservoir company, in consideration of the company’s agreement to enlarge and complete its reservoir to a certain capacity, cannot be required to accept the shares, until it is made to appear that the statute has been complied with. (520, 521.)</p> <p>3. Estoppel — By Conduct. Plaintiff owning water rights in a reservoir company had agreed that, upon completion of the reservoir, they would aecept shares in the company. They attended a meeting of the stockholders at which an assessment was levied upon the corporate stock, — not to participate as stockholders, but to protest as the owners of water rights. Held, that plaintiffs were not by such attendance estopped to deny liability for assessment. (519.)</p> <p>The action of one plaintiff in the premises was no estoppel upon his co-plaintiffs. (519.)</p> <p>Plaintiffs in consideration that the reservoir company should construct and complete its reservoir to a certain capacity, agreed to accept shares in such company.</p> <p>Afterwards the reservoir company circulated a petition for the organization of an irrigation district, the subscribers thereto agreeing to purchase water rights, on condition that the corporation should enter into a contract with such district for the enlargement of the reservoir, and should sell to the district a specified number of water rights, to be paid for in bonds of the district. Plans and specifications for the proposed enlargement were attached to the petition. The reservoir company afterwards entered into the proposed contract, with the district, in accordance with what was set down in the petition. Some of -the plaintiffs subscribed the petition, and others attended meetings of the holders of ivater rights under the reservoir, when the acceptance of the contract by the district was under consideration. Held that plaintiffs were not estopped from an assertion of their rights under the plain provisions of a previous contract. (524-527.)</p>

<p>Error to El Paso District Court. Hon. J. W. Sheafor, Judge.</p> <p>Statement of the Case: J. W. Atkinson, Schwingel & McCandlish, and the Trussed Concrete Steel Company, each brought an action against the Star & Crescent Building Company to foreclose mechanics’ liens for labor and material furnished towards the construction of a creamery and storage building, the erection of which never proceeded further than making the basement excavation, and putting in reenforced concrete footings, basement walls to grade line, and foundations for machinery. For the purposes of trial these mechanics’ lien suits were, by stipulation, consolidated with an action of The Colorado Title & Trust Company against the Star & Crescent Building Company, brought in the lower court to foreclose a mortgage or deed of trust on lots 14, 15 and 16, block 275 in Addition No. 1, City of Colorado Springs.</p> <p>The court found the mortgage was a valid, prior and superior lien to any liens of the mechanic lien claimants; that subject to such mortgage lien, Atkinson, and Schwingel & McCandlish each were entitled to liens of equal rank, and that the Steel Company should take nothing. A decree for sale on foreclosure was entered, ando application of the proceeds directed in accordance with such findings.</p> <p>The Star & Crescent Creamery Company, a corporation, of which F. W. Edmonds was president, and his son, R. S. Edmonds, secretary, was engaged in the creamery business at Colorado Springs, and desired to purchase a site and erect thereon a creamery and storage building. For this purpose the Creamery Company took steps in the fall of 1910 towards the construction of such a building by purchasing or negotiating for the lots, and employed Schwingel & McCandlish to prepare plans and specifications. November 18, 1910, the Creamery Company, to prevent delay in the construction, entered into a written contract with the Steel Company to furnish the necessary steel to be used in the building, and incorporated therein a clause to the effect that the contract for steel would be assumed by the successful bidder in his contract for the construction of the building. Subsequently the Edmonds, who were in control of the business, and the prime financial movers and promoters of the project, instead of carrying out the original plan, conceived and executed the idea of financing the project by organizing a building company, separate from the Creamery Company, to acquire the building site from the Creamery Company, and erect thereon a building for its use. The funds necessary to finance such an enterprise were to be raised by selling bonds of the Building Company, secured by deed of trust or mortgage on the lots, and improvements to be erected thereon. December 5, 1910, pursuant to this plan, the promoters caused to be organized the Star & Crescent Building Company. December 9, 1910, The Creamery Company entered into a contract with the Building Company, agreeing to convey the lots to the latter, in consideration of 45 shares of its preferred capital stock, but the stock was not actually issued until some time in January, 1911. The Building Company then attempted to do what the Creamery Company had planned. The two companies having the same officers, being under one management, and working for the same object, it was some times difficult to draw a line of distinction between them. 'Bonds to the amount t>f $20,000.00 were duly authorized and issued by the Building Company, secured by deed of trust or mortgage on the lots, and improvements to be subsequently constructed thereon, and the Colorado Title & Trust Company, defendant in error, was made trustee for the bond holders. The Building Company employed one Pease to sell the bonds on commission, and December 30,1910, he sold and delivered five of them to his clients, from which, after deducting a discount and his commission, $4,500.00 was realized, and in accounting for this money to the president and secretary of the Building Company, he gave them his personal check made in the first instance to the Building Company, but at their request changed, by writing over the word "Building” the word “Creamery,” thus making it payable to the Creamery instead of the Building Company. These officers at the time explained to him that this was done as a matter of convenience ; that the Building Company had not yet opened a bank account, and all its accounts were kept with' those of the Creamery Company. This check was deposited at once by the secretary, to the credit of the Creamery Company, whose officers immediately checked out the fund in payment for the lots; the deed, at the request of the Creamery Company, being executed to the Building Company, which was credited by the Creamery Company with $4,500.00, and the deed, and trust deed, were placed upon record. The following day, December 31, 1910, Atkinson, plaintiff in error as principal contractor, entered into a contract with the Building Company to erect the building upon the lots, according to the plans and specifications previously prepared for the Creamery Company, by the architects, and a few days after-wards began the excavation. About this time he claims he was informed for the first time that the Creamery Company had already ordered the necessary steel for the building. It seems both companies requested him to use this steel in the construction, which he says he agreed to do as far as he could. While he was proceeding with the excavation, they notified him that a car of steel consigned to the Creamery Company had arrived, and requested him to pay the freight, and take charge of it, which he did, storing the steel on the property and adjacent lots, to be used in the construction of the building. He claims, however, to have done this as a matter of accommodation to the Creamery Company. After completing the cement footings, basement walls and foundations, in which he used some of the steel, he presented to the Building Company a statement, and it not having the money to pay him,' he discontinued the work, and afterwards filed a mechanic’s lien statement for the amount he claimed to be due him at the time, and.no further work has since been performed by anyone towards the construction or completion of the building. The architects filed a lien statement for the* unpaid balance due them, and the Steel Company did the same for the steel furnished under its contract with the Creamery Company to be used in the construction of the building.'</p> <p>Atkinson asks to have the case reversed because, as he says:</p> <p>(a) The bond holders paid the Building Company no consideration for the bonds.</p> <p>(b) The money paid for the bonds was diverted by Pease from the Building Company, at the direction of its president and secretary, without authority; that the bond holders through Pease as their agent, were charged with knowledge of such facts as he might have obtained upon inquiry.</p>

<p>1. Railroad Company — Duty to Those on the Public Street. It is not true that" one upon the street crossing of a railroad, not actually crossing or intending to eross the tracks, and not a licensee, is a trespasser upon railroad property. (541.)</p> <p>A" railway company which, in moving a locomotive backward over a public street where there is no flagman, carrying no light at the rear, and giving no signal, injures one lawfully upon the street, is liable in damages. (541.)</p> <p>It is the duty of the railway company to use ordinary care to avoid injury to one upon its tracks, at such place, whether technically a trespasser, traveler, or licensee. (542.)</p> <p>2. Appeal and Error — Verdict on Conflicting Evidence, under proper instructions, will not be disturbed. (542.)</p> <p>3. Instructions — Misleading. The Denver & Rio Grande Company and the Florence & Cripple Creek Company operated parallel tracks in the City of Canon. A brakeman of the former company, while standing upon the tracks of the latter, at a street crossing, was injured by the negligent operation of a train of the latter. An instruction which declared the brakeman negligent, if he entered upon defendant’s track when the approaching train could be seen, regardless of its distance, was held properly refused. (542.)</p> <p>4. Damages — Evidence as To. In an action for personal injuries the plaintiff having proved his earning capacity before the injury, is not required to show what he has since earned. (542.)</p> <p>5. New Trial — Misconduct of Counsel. Improper remarks of counsel which the court a.t once directed the jury to disregard, reprimanding the attorney, were assigned as ground for a new trial. The court below having denied the motion, and so determined that the objectionable remarks had not affected the verdict, this court declined to disturb the result. (543.)</p> <p>6. -- Misconduct of Jury — Quotient Verdict, not arrived at pursuant to a previous agreement of the jurors, and approved by the trial court, will not be disturbed. (543, 544.)</p>

<p>1. Principal and Agent — Principal Affected by Notice to Agent. The head eamp of a fraternal soeiety is affected by a long established course of dealing between a member and the secretary of the camp with whieh he affiliates, by which the member is allowed indulgence, and days of grace after maturity, for the payment of his assessments. (547.)</p> <p>The secretary's knowledge is the knowledge of the head camp. (547.)</p> <p>By such a course of dealing the member is, notwithstanding the provisions of the constitution to the contrary, continued in good standing for such reasonable time, after the maturity of an assessment, as is sanctioned by such course of dealing and custom. (547.)</p> <p>2. Evidence — Presumptions. Evidence that it had been, for a long time, the custom of a fraternal soeiety to receive from a particular member his assessment, subsequent to its maturity, raises a presumption that in failing to promptly pay an assessment levied next previous to his death he was relying upon this custom. (548.)</p>

<p>Error to Denver District Court. Hon. JOHN A. PERRY, Judge.</p>

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

<p>Error to Denver. Juvenile Court. Hon. Ben B. Lindsey, Judge.</p>

<p>•1. Marriagk — Common Law — Evidence. Husband and wife, after a cohabitation of years, entered into an agreement of separation, and lived apart for less than one year. During this separation the husband procured a divorce. Shortly thereafter they beeame reconciled, and without the performance of any ceremony resumed their relations, and lived in great harmony, until the husband’s death, all this time being recognized by their neighbors and acquaintances, and recognizing each other, as husband and wife. Held a marriage at common law; that the wife, on the death of the husband, was entitled to administer upon his estate, and to the entire inheritance, in the absence of issue. (567-569.)</p> <p>2. -Separation — Reconciliation—-Effect. The reconciliation of husband and wife abrogates articles of separation previously agreed upon. (569.)</p> <p>3. Will — Revocation by Subsequent Marriage. A common law marriage revokes a previous will of one of the parties. (570.)</p>

<p>Error to Morgan District Court. Hon. H. P. Burke, Judge. Mr. R. F. Armstrong, of counsel.</p>

<p>1. Garnishment Proceedings- — Appeal Bond. In an appeal to the County Court from the judgment of a Justice of the Peace, in garnishment proceedings, the statutory form of the appeal bond is properly changed to meet the facts of the situation. (575.)</p> <p>2. -Burden of Proof. Upon an issue between a judgment creditor and a third person claiming to be entitled to a sum of money admitted to be due from a garnishee, the claimant has the burden of proof. (576.)</p> <p>3. - Form of Judgment. Where a garnishee admits liability and deposits in court the amount admitted, and no question is m.ade as to the amount, but only as to whether the money was due to the defendant or to a third person claiming it, and this is resolved in favor of the claimant, the garnishee should be discharged and a judgment entered directing payment of the money to the claimant. (577.)</p> <p>4. -Costs. Where the proceeding begun in a justice’s court was carried by appeal to the County Court, the justice was ordered to pay the full amount of the garnishee’s deposit into the County Court, and issue execution against the defeated plaintiff for all costs. (577, 578.)</p> <p>5. Appeal and Error — What May Be Assigned for Error. Error in the mere form of the judgment below cannot be assigned ror error. (576.)</p>

<p>1. Instructions — Repetition. The trial court is not required to give an instruction which is a. mere reiteration of the principle involved in those already given. (580.)</p> <p>2. Evidence — Burden of Proof. Prosecution under a city ordinance for conducting an auction sale without license. The defendant had advertised the sale in his own name, and conducted it in his own person, at a place where he had for years carried on -the same business. He defended on the ground that he was acting as the servant of another, who was duly licensed. The burden of establishing the defense was upon the defendant. And held that if the claim of employment by a licensed person was a mere subterfuge, to evade the requirements of the ordinance, it must be disregarded. (580, 581.)</p> <p>3. Trial — Communication of the Court with the Jury, should be, invariably, in open court, and in the presence of counsel. (5S1.)</p> <p>4. Appeal and Error — Harmless Error. An instruction transmitted by the court to the jury during their retirement, and which erred in favor of the defeated party, cannot be assigned for érror. (582.) '</p> <p>That one alleged to be prejudiced against the defendant was the bailiff having charge of the jury during their retirement cannot, be, assigned for error where there is no pretense that such bailiff in any way influenced the jury. (582.)</p>

<p> Petition for Writ of Prohibition. </p>

<p>1. Receiver — Of Corporation — Bound by Contracts of the Corporation. The receiver of a corporation is bound by the completed contracts’ of such corporation. (587, 588.)-</p> <p>. An irrigating :comx>anv had execnted • contracts entitling certain consumers named to the perpetual use of water from its system, during the irrigating season in’each year, and covenanting to deliver" a deed of the water right '‘when1 water is made available;”1 by the. completion of the works, had received full payment of the stipulated consideration money, and delivered the stipulated volume, during three or four seasons. The contracts were held executed contracts, entitling the consumers named therein to the enjoyment of the rights thereby granted, and a decree authorizing the receiver to disregard them was reversed. (587, 588.)</p> <p>2. Contracts — Construction. In the interpretation of a contract, the subject matter, the sense in which the parties thereto would naturally understand the words used, and the objects and purposes to be accomplished thereby, are to be considered. (588.)</p>

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

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

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