Volume 61 — Colorado Reports

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

<p>1. Damages — Proximate Cause. Plaintiff was prosecuted under the town ordinance for the unlawful sale of intoxicating liquors, and fines aggregating $3,200.00 were imposed. She appealed from the judgments, giving bond with surety, and to indemnify the surety executed a deed of trust upon certain realty. Por want of prosecution her appeal was dismissed, and the surety having paid a judgment against it, recovered by the town, caused sale to be made of the plaintiff's real property, under the deed of trust.</p> <p>The ordinance under which the fines were imposed was void as ruled in People v. Miller, 53 Colo. 370, and plaintiff brought an action to recover from the town the amount of the fine, as paid under duress. Seld that the proximate cause of the loss of which plaintiff was complaining was her failure to prosecute her appeal. Judgment of non-suit affirmed. (7, 8.)</p> <p>2. Contracts — Validity. An appeal bond given in an appeal from a judgment imposing a fine, under a void ordinance, is a valid obligation. (7.)</p>

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

<p>1. Game — StaUite Construed. At common law wild game belonged ta no one. The title was in whoever could first capture it, which anyone might lawfully do. So, under the statutes preceding the act of 1899 (Rev..Stat. secs. 2739 et seq.) No act of the individual in taking game, or having it in possession, was unlawful, unless prohibited by some express provision of the statute; and in prosecutions for a violation of the statutes then existing, the burden was upon the people to prove that whatever was alleged against the accused was prohibited. The act of 1899 (Rev. Stat. e. LVIII), is a radical change, not only from the substantive law previously existing, but as well, from the procedure for the enforcement of' the statute. Except as expressly permitted by the act, no person can now take, or have in possession, any of the wild animals or birds mentioned in the statute. (14, 15.)</p> <p>Possession of a portion of the eareass of a deer, at a time when there was no open season upon deer, is a violation of the act. (16.)</p> <p>What is prohibited, and the punishment thereof declared, in Eev. Stat.. see. 2876 is a misdemeanor. (17.)</p> <p>That the section fails to so declare is unimportant. (17).</p> <p>2. Criminal Law — Information, for the unlawful having game in possession need not negative the exceptions of the statute. (19.)</p> <p>3. -Evidence — Burden of Proof. In prosecutions under the game law, proof of possession by' the accused of the forbidden thing makes a prima facie ease; and the accused, claiming the benefit of any exception in the statute, has the burden of proving his claim. The statutory shifting of the burden of proof has not the effect to abrogate the rule of reasonable doubt. (18.)</p> <p>If upon the whole case a reasonable doubt remains in the minds of the jury they must acquit. (18.)</p> <p>4. Statutes — Prohibiting an Act, and declaring the penalty, need not declare the grade of the offense. (17).</p>

<p>1. Criminal Law — Larceny of Chattels by Mortgagor — Evidence. In a prosecution against a mortgagor of chattels under Rev. Stat. sec. 524, it is not sufficient to show merely that the chattels could not be found in the locality to which, as the mortgagee was informed, they were to be taken. Upon such showing, without more, the court should direet an acquittal. (28).</p> <p>And the mortgagee is not held to be eonvieted upon evidence merely that another, in whose possession he had placed 'the chattels, had sold them. He is not to be punished for the acts of another.</p> <p>2. -Practice. Where, after the erroneous denial of a motion to direet an acquittal, the accused produces evidence, the error of the court in' denying the motion is no longer in question; the judgment is to be reviewed upon the whole ease. (80).</p>

<p>1. Appeal and Error — Harmless Error. Striking from the pleading an averment as to matter which is afterwards received in evidence is harmless. (3Í.)</p> <p>2. Payment — Burden of Proof, is upon the party alleging it. (33.)</p> <p>3. Evidence — Weight to Be Accorded. Positive testimony of a disinterested witness prevails against the mere lack of memory of a party to the controversy. (37.)</p> <p>4. -Admissions — By Conduct. Plaintiff had accepted from defendant certain shares of corporate stock, upon condition, as he contended, that defendant should execute his guarantee that the stock could be sold at par, within a specified period.</p> <p>The guarantee was never executed, and in faet was refused. Long-after the maturity of the note, plaintiff demanded of the corporation, and received, a transfer of the shares to his own name; but it appearing that defendant was otherwise indebted, and that this aetion of plaintiff -was taken in the fear that the stock might be attached by other creditors, and merely to protect the security. Held plaintiff was. not concluded by tlie action so taken; nor was liis conduct evidence of any -new agreement to accept the stock in satisfaction of the note. (38.)</p> <p>5. Contracts — Condition. One who executes and delivers a promissory note, the payee agreeing to surrender it upon a condition to be performed by the maker, is absolutely bound if he refuses to perform the condition. (37, 38.)</p>

<p>Error to Moffat District Court. Hon. John T. Shumate, Judge.</p>

<p>1. Water Rights — Change of Point of Diversion. Every appropriator of water from a natural stream, having a decreed priority, is entitled to have the conditions existing at the time of his appropriation substantially maintained. A change in the point of diversion of the water awarded one appropriator will be denied, if it appears that such change will materially injure other appropriates. (53.)</p> <p>The evidence examined and the change permitted by the deeree of the District Court held to occasion material injury to the protestants. (49-51.)</p> <p>2. -Drror — Preparation of the Record. Error lies to a decree authorizing the change in the point of diversion of water. The bill of exceptions is to be framed, and the record prepared as provided by chapter 6 of the Acts of 1911. (47.)</p> <p>3. -Adjudication of Priorities — Decree. The la,w limiting the volume of water allowed to any appropriate to what is sufficient for the purposes o'f his appropriation is read into every deeree granted under adjudication proceedings. Waste or excessive use is impliedly prohibited, even though the volume awarded may, at times, be more than is needed for the purpose set down in the deeree. (53.)</p> <p>4. -Appropriations of Water Prior to the Adoption of the Constitution, stand upon the same footing as appropriations subsequently made. They are tested by the same principles, and controlled by the same rules and regulations, save as affected by the classification made in the Constitution. (57.)</p> <p>The phrase "not heretofore appropriated,” in sec. 5 of article VI of the Constitution, is a mere recognition of the rights acquired by appropriations then already existing.</p> <p>5. Evidence — Relevancy. A deeree adjudicating priorities awarded to a certain ditch a specified volume for several distinct purposes, not stating the volume awarded ih respect of either purpose. The effect of the deeree coming afterwards in question, held that a certified copy of the sworn statement of claim for such ditch was admissible, to assist in the interpretation of the deeree. (47, 48.)</p>

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

<p>Error to Teller County Court. Hon. Daniel A. Ferguson, Judge.</p>

<p>Trial — Questions for the Jury. Neither a non-suit, nor a directed verdict for defendant, is to be granted, unless there is a total want of evidence to support the claims of the plaintiff. (75.)</p>

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

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

<p>Error to El Paso District Court. Hon. W. S. Morris, Judge.</p>

<p>1. Contract — Construed. Plaintiffs, a firm of merchants, entered into an agreement in writing with the defendant, by which they committed to his charge their stock on hand, fixtures, and book accounts, with authority to carry on the business as if it were Ms own, for such reasonable time as might be necessary to clear it of debt; and defendant agreed to purchase-such goods, and only such, as were necessary to keep up the staple lines, not to materially increase the stock, and to advance such funds as might be necessary to discharge the firm’s liabilities, a schedule of which was attached to the agreement, whenever payment should be demanded. These advances were to be repaid to him from the receipts of the business, and the collection of the accounts, and he was to be compensated for his services by a percentage upon the moneys paid out, plus The “marked value” of the goods on hand when the firm debts were discharged, and the stock remaining on hand was ready to be restored to plaintiff. Held that if plaintiff paid any liability of the firm not set down in the schedule attached to the writing, such payment was without authority, and he was not entitled to reimbursement; that by the contract defendant assumed all risk of loss in its performance and was not entitled to demand anything from plaintiffs in respeet of such loss. (91.)</p> <p>2. Reference — When Allowed — Account. In. the same ease, plaintiffs demanding damages for alleged violations of the contract, defendant by counter claim alleged divers violations of it by plaintiffs, and demanded an account of the amount due him for advances and commissions.</p> <p>Held that plaintiffs were entitled to a trial 'by jury, and that to refer the ease was error; that plaintiff’s aetion was an action at law, and that defendant, by demanding an account for which there was no necessity, inasmuch as he himself had all the data, could not convert the action into one of equitable cognizance. (92, 93.)</p>

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

<p>Error to Denver District Court. Honorable John H. DíENISON, Judge.</p>

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

<p>Error to Otero District Court. Hon. C. S. Essex, Judge.</p>

<p>Error to Otero District Court. Hon. C. S. Essex, Judge.</p>

<p>Error to Bio Blanco District Court. Hon. Charles Cavender, Judge.</p>

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

<p>1. Evidence — Circumstantial Evidence, produced in a civil action, to establish an act which is in law a crime, or involves a fraudulent intent, or moral turpitude, entitles the one so accused to show his general reputation for honesty ¿nd integrity. (143.)</p> <p>2. Municipal Ordinance — Prosecution for Violation, is a civil action, but quasi criminal. (143.)</p> <p>3. ■ — ■—■ Evidence. Where the ordinance imposes a penalty, only in case the offense is fraudulently committed, the fraudulent purpose of the accused is of the gist of the accusation and must be proven.</p> <p>The charge being, the fraudulent sale of tainted meat, the fact that the purchaser selected the meat and thought it ‘1 all right, ” is no defense. (145.)</p> <p>4. - Complaint — Amendment. The complaint of the city may be amended. (145.)</p>

<p>1. Evidence — Competency. Action for the death of a servant, attributed to negligence of the master in requiring, by its shift boss, the deceased to work in an unsafe place.</p> <p>Evidence of prior “cave-ins,” at other points in the same drift, and that the shift boss had knowledge thereof, held incompetent. (147.)</p> <p>2. Instructions — Not Applicable to the Evidence. An instruction which is directed to a question upon which there is' no evidence, is misleading and improper. Action for the death of plaintiff’s husband killed by the fall •of a rock, while employed in the mine of defendant. The court charged, that “if the shift boss * * * deems the place safe, the employe has the right to assume that the place is safe, unless the danger is obvious.” There was no dvidenee that any representative of the defendant, deemed the place safe, and the shift boss, as appeared by plaintiff’s own evidence, had •directed deceased not to work in, the place where he was killed.</p> <p>The instruction held error as tending to create in the minds of the jury the impression that, the shift boss had assured the deceased of the safety of £he place. (148.)</p>

<p>1. Criminal Law — Insanity After Conviction — Inquisition. Under Rev. Stat., see. 1614, when the insanity of a convicted person is suggested, the court may determine the condition of the prisoner’s mind by personal examination either publie or private, by inquiry of the physicians who have attended him, or those having him in custody, and after such inquiry, the judge should order an inquest, only when he believes him insane, or doubts his sanity. (193.)</p> <p>2. —:— Error to- the Inquest, does not lie. (195.)</p> <p>3. -Nor Certiorari, unless it appears that the court in which the inquest was held was without jurisdiction. (195.)</p>

<p>Error to Crowley District Court. Hon. J. E. Rizer, Judge.</p>

The case ruled by the opinion announced in Ejagadorn Investment Co. v. Eieke, No. 8274, 60 Colo. 555. The judgment of the District Court directed that if notes given by plaintiff as part of the purchase priee of certain land should not, be returned into court and cancelled by defendant, plaintiff should have judgment against defendant for 'the amount due upon said promissory notes, with interest.

<p>The case ruled by the opinion in Bagadorn Company v. Bielce, No. 8274, 60 Oolo. 555.</p> <p>Error to Conejos District Court. Hon. Charles C. Holbrook, Judge.</p>

<p>The case ruled by the opinion in Hagadorn Company v. Melee, No. 8274, 60 Colo. 555.</p> <p>Error to Conejos District Court. Hon. Charles C. Holbrook, Judge.</p>

<p>The case ruled by the opinion in Hagadorn Company v. Rielce, No. 8274, 60 Colo. 555.</p> <p>Error to Conejos District Cowt. Hon. Charles C. Holbrook, Judge.</p>

<p>Error to Weld District Court. Hon. Neil E. Graham, Judge.</p>

<p>Error to Bent District Court. Hon. A. Watson McHendbie, Judge.</p>

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

<p>1. Bill oe Exceptions — Need Not Present 'All the Dvidence. Where the sole question is as to the propriety of a directed verdict, it is only necessary to make it appear that the party complaining was entitled to go to the jury, so that to direet the verdict was improper. (240.)</p> <p>2. Trial — Directed Verdict — Where Proper. Only when the evidence, with all the inferences therefrom justly deducible, is insufficient to warrant a verdict against the party moving for the direction. (240, 241.)</p> <p>Action against a municipal corporation for negligence in fixing the channel of a water course, and in the plan for regulating the capacity of such channel. Evidence examined and held to entitle defendant to go to the jury. A direetéd verdict set aside. (241-243.)</p> <p>3. --- Questions for Jury. The credit of witnesses, the weight to be aeeorded to the testimony, and the inferences to be drawn therefrom, are for the jury. (243.)</p> <p>4. Act of God — An Unprecedented Storm, is a calamity which a municipal corporation is not under duty to anticipate, in fixing the channel of a water course through its limits. (242, 243.)</p>

<p>1. Tax Title — Preliminary Steps — Burden of Proof. Where the validity of. the tax title is denied the burden of proving the preliminary steps leading up to the sale is upon the one claiming under the tax title.' (245.)</p> <p>2. - Pleadings. Defects in a tax deed, or the proceedings leading up to the tax sale, must, if relied upon, be pointed out in the pleadings; but it is not required that this shall be done in any particular manner, or exclusively by the party relying upon such defects.</p> <p>The answer setting up the 'tax title alleged due advertisement of the sale. This allegation was traversed by the reply. Held that the matter was in issue. (246.)</p> <p>3. -Notice of Tax Sale — Publication. The affidavit of publication stating that the notice was published, etc., and “copies of eeah number of the paper, etc., delivered by carrier, or transmitted by mail, to each subscriber” in a certain county named, held admissible, and sufficient to overthrow the prima facie case made by a tax deed conforming -to the statute. (247.)</p> <p>4. Appeal and Error — Bffeet of an Appeal. A perfected appeal terminates the jurisdiction of the trial court. (247.)</p> <p>G-arrigues, J., dissenting, was of the opinion that though the action was to quiet title, it was in effect “for the recovery of land,” within the meaning of the five-year limitation (Rev. Stat. see. 5733).</p>

<p>Tax Titles — Tax Furchase Certificate — Effect. The holder of a tax purchase certificate has neither title nor constructive possession. (252.)</p>

<p>1. Evidence — Burden of Proof. In an action against a decedent’s estate, upon a promissory note bearing her signature, the administrator asserting that deceased was a mere surety has the burden of proof. (254.)</p> <p>2. - Self-servmg Statements, prove nothing. (255.)</p> <p>3. Administration — Statute of Non-Claim. Where a claim is filed against a decedent’s estate within one year from the granting of letters, it is immaterial that no notiee to the exeeutor of an application for its allowance is given, until the lapse of the year. (256.)</p> <p>4. Promissory Note — Construed. A promissory note signed by husband and wife held to be their joint and several promise. (255.)</p>

<p>Error to Montrose District Court. Hon. Thomas J. Black, Judge.</p>

<p>Damages for wrongful diversion of ivater; not to be allowed unless alleged and proved. (264.)</p>

<p>Trust in Lands — Evidence. The testimony to support an alleged trust, by parol, in lands, held insufficient. (265, 266.)</p> <p>The court notes the omission of the plaintiff to assert his rights during the life-time of the alleged trustee.</p>

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

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

<p>1. Pleading — Swplnssage. Allegations of matter having no relevancy to the eause of action asserted, are rejected as surplussage. (301.)</p> <p>2. Appeal and Error — Judgment. Improper directions in the judgment below do not render it necessary to award a new trial. The judgment reversed and the eause remanded with directions to enter the proper judgment. (301.)</p>

<p>Words and Phrases — Unmarried. The statute giving an action for wrongs resulting in death provides that if the deceased be “unmarried,” the parents, or the survivor of them, shall be entitled to the action (Rev. Stat., see. 256). (305.)</p> <p>Husband and wife came to their death in the same casualty, but the wife survived the husband about thirty minutes. Held that the mother of the wife was entitled to the action. (305, 311.)</p>

<p>1. Pleading — Admissions In. One who joins issue upon the complaint without moving to strike any of its allegations, impliedly recognizes the pertinency of those allegations to the cause of action set forth. (314.)</p> <p>2. Evidence — Parol Admissible. In an action to cancel or reform a conveyance on the ground of fraud, accident, or mistake, parol is admissible to show the intention of the parties. (314.)</p>

<p>Error to El Paso County Court. Hon. W. P. Kinney, Judge.</p>

<p>1. Water Rights — Adjudication of Priorities — ■Decree Construed. A decree which settles the priority of a particular ditch, and declares the beneficial application of the prescribed volume, leaving nothing as to the volume open to future ascertainment and settlement in the same proceeding, or in any subsequent, independent action, is absolute, and not conditional as to any of its features. (318, 322.)</p> <p>The volume prescribed in such case is as much res judicata, as any other fact necessary to' a completed appropriation. None of such matters are open to question in an action instituted more than twenty years after the entry of such decree. (324.)</p> <p>2. - Power of the Court. The court has no authority to control the use of the water, subsequent to the decree. A prohibition to use more than a specified volume upon a specified acreage is beyond the jurisdiction of the court. (323, 324.)</p> <p>3. - Bight to Apply Water to Other Bands, than those upon which the right has ripened, is incident to the ownership of the water. (325.)</p> <p>4. - Abandonment. Consists in non-user, with an intention on the part of the appropriator not to re-possess himself of, or further use, the water. Non-user for a considerable time, nothing indicating an intention on the part of the appropriator to resume the use, warrants the inference of abandonment. (324, 325.)</p> <p>5. - Evidenee — Burden of Proof. ' Whoever demands judgment that an adjudicated right to the use of water has been abandoned, has the burden of establishing his case by clear and convincing-evidence, (324, 325.)</p> <p>6. -Pretended Vse. The diversion of water when not needed, for the. mere purpose of making a. false appearance of its use, will not dispel the inference of abandonment from lnog continued non-user. (325.)</p>

<p>1. Evidence — Receiver’s Receipt. The receipt of the receiver of the United States Land Office is not admissible as evidence of title, unless shown to be genuine. (331.)</p> <p>2. Quieting Title — Plaintiff’s Title. A decree quieting the title to vacant land in one who shows neither title nor possession is error. (331.)</p>

<p>Error to Eagle Coimty Court. Hon. L. B. Tague, Judge.</p>

<p>Check — Forged Endorsement — Collection by Bank Other Than Drawee. A bank which, upon a forged endorsement, accepts a cheek drawn upon another bank, and collects the amount from the drawee bank, is liable to the payee named in the check for the amount so collected. (340.)</p>

<p>Error to Mesa District Court. Hon. T. J. Black, Judge.</p>

<p>Error to Mesa District Court. Hon. Thomas J. Black, Judge.</p>

<p>Water Rights — Appropriation. Plaintiff claimed to be entitled by appropriation to the waters oí a spring rising upon defendant’s land, for the irrigation of lands lying below those of defendant. Held that no appropriation had been effected. (353, 354.)</p>

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

<p>1. Evidence — Burden of Proof. Defendant interposing- a plea in confession and avoidance has the burden of establishing his defense. (361.)</p> <p>2. -- Admissions. Conveyance of the demised premises by the landlord, without mentioning an existing lease, is no evidence of the landlord’s consent to a previous surrender by the tenant. (362.)</p> <p>3. Trial — Directed Verdict. When the defendant entirely fails to sustain an affirmative defense, the plaintiff is entitled to a directed verdict. (362.)</p> <p>4. Landlord and Tenant — Tenant’s Surrender not Accepted, does not release him from liability for the rent.</p> <p>Upon tenant’s vacating the premises, during the term, it is the landlord’s duty to assume possession, and his doing so is no acceptance of the surrender, and no waiver or release óf rents then accrued or subsequently accruing^ (362.)</p> <p>5. Appeal and Error — Judgment. The defendant pleading an affirmative defense failed to establish it. Judgment for defendant reversed and judgment for plaintiff ordered. (362.)</p>

<p>Pleadings — Demesnes Must Be Alleged. Action for specific performance, the complaint alleging merely "that plaintiff will suffer .great damage" if the agreement be not performed; held not an allegation of fact, but a prophecy; that to direct an assessment of damages, on denying the relief prayed, was error. (365.)</p>

<p>1. Appeal and Error — Judgment Not Supported hy the Evidence, mil bd reversed. (367.)</p> <p>2. Evidence — Conversation Construed, not to import a contract. (366, 367.)</p>

<p>Error to Denver County Court. Hon. Ira C. Rothgerber, Judge.</p>

<p>1. Railroad Companies — Liability for Fires — Effect of Insurance.</p> <p>The liability imposed upon railway companies for fires set out "in the operation of the railway by Rev. Stat., sec. 5512, is absolute. The owner of the property damaged or destroyed recovers his loss in full, though he may have obtained insurance upon such property, and received the insurance money. (379.)</p> <p>The question is not affected by sec. 3, art. II, of the Constitution. (387.)</p> <p>2. -- The Common Law Liability of the Railway Company for Negligence, is obliterated by the statutes, which prescribes the rule for all cases. What is said to the contrary in Smith v. Denver Co., 54 Colo. 288, overruled. (385, 386.)</p> <p>3. --- Subrogation of Insurer. Tinder the statute the insurer is not to be subrogated to- the insured. Any contract to the contrary, or an assignment by the insured to the insurer, in the policy, of the former’s right of action, is without effeet. (380.)</p> <p>4. - Title of the Act. The title of the aet (Laws 1903, e. 153) is sufficiently broad to sustain the provision limiting the liability of the railway company to the owner or mortgagee. (386.)</p> <p>5. Constitutional Law — Special Laws. Even if Rev. Stat., sec. 5512, is to be regarded as a special law, it is not, for that reason, to be condemned by the courts. The necessity for a special enactment, in any case, is a legislative question. (388.)</p> <p>6. - Class Legislation. See. 5512 of Rev. Stat., being general in its terms, and applying to all cases within its scope, is not to be condemned as class legislation. (389, 390.)</p> <p>The circumstance that no provision is made for the protection of others interested in the property, e. g. lessees, is not important. (”389.)</p> <p>The legislature being empowered to impose the liability may lawfully prescribe its extent, and specify those who may avail of it. (390.)</p> <p>7. Common Law — Legislative Tower Over. No person has property in any rule of the common law. Property acquired under the common law cannot be taken away without due process, but any provision of the common law prescribing a rule of action may be changed in the legislative will, save as is prohibited by the Constitution. (384.)</p>

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

<p>1. Constitutional Law. — Governor—Power of Appointment to Office. As to offices created by the Constitution, and the appointment to which is committed to the Governor, his discretion is not to be limited or impaired by legislation. As to offices created by statute, the legislature may commit the appointed to the' Governor, or to any other officer or board. (398.)</p> <p>The provisions of the Civil Service Law requiring the appointment to particular places in the civil service of the persons standing highest in the eligible list is not in conflict with see. 1 of Art. IV of the Constitution. (398.)</p> <p>2. Civil Service — Power of the Legislatwe. In the appointment of officers of the Civil Service, as well as in prescribing their duties, the Legislature is supreme. (400.)</p> <p>3. -.Appointment of ineligible person, e. g. one not standing highest in the eligible list, is void. (403.)</p> <p>4. Warden of the State Reformatory — Appointment. The appointment of the warden of the State Reformatory is not committed to the Governor by sec. 6, art. iv. of the Constitution, being "otherwise provided for,” within the meaning of that section. The Constitution not conferring ujion any officer the power to appoint to this office, it rested with the legislature to confer the power, and take it away, at its pleasure.</p> <p>See. 6249 of the Revised Statutes is repealed by the Civil Service Law. (Laws 1907, c. 117, Laws 1913, p. 682.) (400, 401.)</p> <p>Senatorial confirmation of the appointment of the Warden is not required. (402.)</p> <p>5. Public Officer — Appointment Where There Is No Vacancy, is void. (402.)</p>

<p>1. Evidence — Parol Admissible, to aid in determining the understanding and intentions of the parties to a eontraet, the terms of which are obscure and indefinite. (407.)</p> <p>2. Contracts — Construed. Contract to furnish certain machinery for the cleaning of a diteh construed, in the light of parol evidence heard, to import that the plant furnished would be sufficient and effective to dean the diteh. (407, 408.)</p>

<p>1. Executors and Administrators — Classification of Claims — Trustees. A demand against a decedent's estate, founded upon the receipt of certain negotiable paper, to be sold by decedent, and the proceeds accounted for, is not of the first class. The deceased is not regarded as a trustee, within the statute. (Rev. Stat. see. 7206.) (412.)</p> <p>2. Maxims — Noscitur a sociis. The word “trustee,” in see. 7206 of the revised statutes, is.to be construed in connection with the other words of the section, and as importing a technical and special trust, not the bailee of chattels, in a particular instance, charged with the duty to sell and account for the proceeds. (412.)</p>

<p>Error to Routt District Court. Hon John T Shumate, Judge.</p>

<p>1. Deed Absolute for Security — Contemporaneous Agreement as to Effect of Default. No effect will be accorded' to a stipulation in a mortgage, or a deed intended as a mortgage, that in case of default, the mortgagee shall become the absolute owner of the land. (420.)</p> <p>A complicated series of conveyances and re-conveyances, held to be without effect as to a prior mortgage, by a former’ proprietor. (418, 420.)</p> <p>2. Contracts — Construction—Conduct of Twrty, is admissible to show his understanding that a deed absolute was in fact intended as a mortgage. (420, 422.)</p>

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

<p>1. Sale — Possession Remaining with Vendor. Dowdell aucl others, dealers in real property were the owners of an auto ear. It was sold upon execution against them. Plaintiff asserted title to the ear under a purchase from Dowdell & Co. It appearing that the car was used and operated by Dowdell & Company after.the alleged purchase, in the same manner and under the same license as before, that it was kept in the same garage, that when levied upon it was found standing in the front of Dowdell's office, and that no person had any knowledge of the sale except the parties thereto and the owner of the garage, held that under Rev. Stat. see. 2668, the sale was conclusively void as to the creditor. (428-430.)</p> <p>2. Appeal and Error — Judgment. An erroneous judgment for plaintiff reversed, and the cause remanded with directions to the court below to dismiss the action. (430.)</p>

<p>1. Payment — By Note, Chech, or-Draft, is conditional only, and does not discharge the liability for which the paper is given, unless there is an agreement expressed or implied that it is accepted as absolute payment. (439, 440.)</p> <p>The burden of proving such agreement is upon the one asserting it. (440.)</p> <p>L.', the agent of an express company, held certain freight for the defendant, to be delivered upon payment of the purchase price due the shipper. Defendant arranged with A. to discharge this amount, and by the procurement of A., L. was induced to accept a draft drawn by a bank with which A. was connected, upon another bank, and upon receiving this draft he delivered' the freight to defendant. There was no agreement or intention upon the part of L. to accept the draft as absolute payment. The draft was dishonored, and the express company having paid the shipper the amount due him were held entitled to recover it from defendant. (439, 440.)</p> <p>2. Appeal and Error — Judgment. All the facts of the transaction appearing in the record, an erroneous judgment was reversed and judgment for plaintiff ordered. (441.)</p>

<p>Error to Routt District Court. Hon. John T. Shum"ate, Judge.</p> <p> On motion of defendant in error to retax costs. </p>

<p>1. Specific Performance — Certainty of Contract. Less certainty i$ r6 quired in a contract -which has been so far performed that to permit the repudiation of it will work a fraud upon the party seeking the relief. (455.)</p> <p>Contract providing for the purchase by defendant from plaintiff of a certain portion of a tract of lands immediately before that purchased by plaintiff from Brown, contained the provision “Water Rights with the place same as bought of Brown. ’ ’ Defendant contended that the uncertainty as to the water rights so to be acquired was a bar to specific performance. But it being manifest that at the time, of the agreement the parties had in mind the particular shares in certain irrigation companies, by which, for years, water had been supplied to the whole tract, this contention was repelled; and plaintiff having tendered a conveyance of the land contracted for, and a share of the water rights proportionate thereto, this was held sufficient on his part. (451-453.)</p> <p>2. - Construction of Agreement — Part Performance — ■TSfect. Plaintiff had purchased, at the instance of defendant, one hundred and twenty acres of land, in order to enable defendant to obtain other lands, part of the tract, which the owner refused to dispose of, except as a whole; and in consideration of such purchase, and pursuant to a previous parol agreement, defendant agreed in writing to purchase of defendant, at a time named, and at a price specified, a particular part of the one hundred and twenty acres. Held that the whole transaction was to be considered, not merely the agreement of defendant to purchase the land specified therein, but the plaintiff’s purchase of the one hundred and twenty acres at defendant’s request, and that thereby the defendant had been enabled to acquire the part of the lands conveyed to him by the former owner; and that defendant having accepted benefits under the contract so construed was not in position to say that it lacked consideration. (451.)</p> <p>3. -• Mutuality of Remedy. Defendant’s contract to purchase land, specific performance of which was demanded, was expressly conditioned upon plaintiff’s election to sell, to be made at a day specified, and it was contended that this deprived defendant of the mutuality necessary to the remedy of specific performance. Seld that when plaintiff’s election was in fact made the contract became enforceable as well by defendant as plaintiff. <451.)</p> <p>4. -Loss by Destruction or Deterioration. The contract provided that plaintiff should "turn said place over * " * with water rights same as bought of Brown.” Among other water rights plaintiff was then entitled to stock in a reservoir company the works of which were destroyed by flood shortly after the making of the contract. Seld that the loss not being chargeable to any aet or neglect of plaintiff was no impediment to the relief demanded. (452.)</p> <p>5. Appeal and Error — Questions not presented below, will not be entertained in the eourt of review. (454.)</p> <p>6. -Rehearing. A party will not be heard to present, upon rehearing, a contention not made in the pleadings and to which there was no reference in the trial court. (455.)</p>

<p>Error to Weld District Court. Hon. Robert G. Strong, Judge.</p>

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

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

<p>1 Railways — Interstate Commerce — Credit to. Shipper- The result of the adjudicated cases is that credit may, notwithstanding the provisions of sec. 6 of the aet of 1906 (34 Stat. at L. p. 587), be extended to the shipper. It is unlawful only when given under circumstances, and to an extent, occasioning discrimination within the meaning of the statute. (482.)</p> <p>Each ease must be determined upon its own facts. A credit is permissible when it is a business necessity or a matter of evident and great convenience, and does not amount to a discrimination. (482.)</p> <p>Defendants desired to assemble in Denver a number of musicians in order to form a band. Many of them were in Mexico, 'some in Texas, and others in New York. How many could-be induced to come to Denver, and from what points, could not at the time be determined, and defendants were without the necessary funds to provide for the transportation, in advance, or immediately upon completion of the service. It was hoped to have the musicians in attendance at the opening of a pleasure resort in the first week of June.</p> <p>On May 20th, accordingly, a contract was made by which the railway company agreed to provide transportation for the musicians over its own and connecting lines, and the defendants agreed to compensate the railway company for this service, in weekly installments of $500.00. Transportation was furnished according to the contract, to the value of $2,000.00, in accordance with the tariffs filed with the Interstate Commission. Held that the contract suggested nothing of favoritism, and was unobjectionable. (478, 479, 483.)</p> <p>2. Statutes — Construction. A statute will not be so construed as to take away a common law right unless this result is required by the words thereof. (484.)</p>

<p>Error to Huerfano County Court. Hon. Henry Blickhahn, Judge.</p>

<p>1. Bankruptcy — Jurisdiction of the Court in Banleruptcy. The Federal District Court sitting as a court in bankruptcy is without jurisdiction to settle the title to properties claimed by the trustee in bankruptcy, and adversely claimed by a stranger to the proceeding in bankruptcy. (543. 544.)</p> <p>2. -Jurisdiction of State Courts. The state court has jurisdiction of an action by one who asserts title to property wrongfully claimed by a trustee in bankruptcy, as pertaining to the bankrupt’s estate, but of which the court in bankruptcy has never assumed possession or control. (544, 545.)</p> <p>3. -Wrongful Possession of Lands, by the bankrupt, is no part of his estate. (545.)</p>

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

<p>1. Constitutional Law — Police Power — Obligation of Contracts. All rights are held subject to the police power. Neither the state nor any of its political subdivisions can surrender it, or contract it away. (562, 563.)</p> <p>A municipal ordinance passed in the exercise of the police power, is not to be condemned because impairing a previous contract of the municipality. (565.)</p> <p>2. Municipal Corporations — Presumptions as to Legislation. A city council, as well as the legislature of the state, is presumed to act in good faith in all legislation. Every ordinance is prima faeie valid. Any unreasonableness alleged in its. exactions must be made clearly to appear. (563.)</p> <p>The city council adopted an ordinance requiring corporations using poles and wires for the conduct of electricity to pay a license fee. The defendant assailed the ordinance as a mere revenue measure, and a violation of its rights under a prior ordinance of contractual character. Held that the burden of establishing the invalidity of the ordinance rested upon defendant; that it was for the municipal authorities to determine the necessity for the regulations in question; that it was not to be assumed that the fees collected under the ordinance would not be applied to the expense of making the inspection contemplated thereby, and nothing appearing to show what this expense might be, it could not be determined that the fees imposed would exceed-the necessary expenditure, or that the ordinane could properly be regarded as a mere revenue measure; that it was to be presumed that if the enforcement of the ordinance should result in a large excess over the expense of its enforcement, the license fee would be diminished, and that this presumption was fortified by the circumstance that the city had already made a reduction in the fee at first prescribed; that even a large excess as the result of the enforcement of the ordinance for a single year would not justify the conclusion that it was merely a revenue measure, or unreasonable. (561-575.)</p> <p>3. Interstate Commerce — Immunities Of. Interstate commerce may be lawfully burdened with the necessary expense of inspection laws, or regulations for the public health, welfare and safety. (564.)</p>

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

<p>Error to Denver County Court. Hon. Ira C. Rothgerber, Judge.</p>

<p>1. Estoppel — Measwe of Proof. The facts apon which it is sought to. raise an estoppel must be clearly and fully established. (575.)</p> <p>2. Evidence. — Bwden of Proof. Where the defendant alleges a negative to support a plea-of estoppel, it rests upon him to support his allegation by evidence. (575.)</p> <p>The case ruled by International Co: v. Pratt Co. ante.</p>

<p>Water Rights — AdjuMeation of Priorities — Evidence. One claiming as art appropriate under the statutory proceedings for the adjudication of priorities, must establish, with reasonable certainty, the, continuous application of the volume which he claims," to some beneficial use.</p> <p>The evidence examined and held entirely insufficient to show the continuous application of the volume claimed, to any beneficial use. (577-580.)</p>

<p>1. Divorce — The State a Party — Duty of Gowrt. The state is an interested party to every action for divorce, and it is the duty of the court to be vigilant to prevent the admission of improper evidence, or the exclusion of what is proper and competent. (582.)</p> <p>2. ---Failure to Pay Temporary Alimony andI Suit Money, does not bar the husband of his defense to the wife’s action. (582.)</p> <p>Where the husband is plaintiff, and is unable to make reasonable provision for the wife during the pendency of the suit, the cause should be continued until he is able. (582.)</p>

<p>1. Statutes — Implied, Repeal. A statute repeals all prior legislation which is clearly repugnant to its provisions. (585.)</p> <p>2. State Bank Commissioner — Not in Classified Service. The approval of the senate being required to the appointment of the state bank commissioner (Laws 1913, e. 44, see. 53), the office is not within the Classified Service. (586.)</p> <p>3. -Time of Assuming Office. Section 3 of the Banking Act of 1907 provides that'the bank commissioner shall enter upon the duties of his office on the first Wednesday of April next following his appointment (Rev. Stat. see. 317). The act did not take effect until the 13th of July, succeeding its enactment. Section 2 of the same statute (Rev. Stat. sec. 316) provides that no salary shall be paid for any time that he may hold office "prior to July, 1907." Held in view of the latter provision, that it could not have been in legislative contemplation that the commissioner first appointed should defer the assumption of his duties until April of 1908, nor that one appointed after the first Wednesday in April of a succeeding year should not be entitled to his office until April of the next year. (586-587.)</p>

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

<p> Error t.o the Court of Appeals. </p>

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

<p>Error to Montrose District Cowt. Hon. T. J. Black, Judge.</p>

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