Volume 62 — Colorado Reports

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

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

<p>Constitutional Law — State Survey. Chapter 161 of the Laws of 1915, providing for the appointment for the Survey Committee of State Affairs, imposes upon the committee no duty hut the making of investigations and recommendations directed to the more efficient and economical management of state institutions, and departments, and is not in violation of article III, or the eighth section of article V of, the Constitution. (50, 51.)</p>

<p>Error to Elbert County Court. Hon. Frank S. Turner, Judge.</p>

<p>1. Legislation — Referendum—Protest—The provisions of Sec. 3, c. 97, of the Laws of 1913, that a protest to a petition for the submission of an act of the legislature to the people must specify the grounds of such protest, and be under oath, are jurisdictional. The Secretary of State is without power to act in the absence of a substantial compliance therewith. (58.)</p> <p>2. -Oath — Certification. Appended to a protest against the submission of a legislative enactment to the People appeared the certificate of a notary public that certain persons therein named, each, “deposes and says: that he subscribed the above protest after reading the same * * * and the contents thereof are true to the best of his Knowledge, information and belief." There being no statement that the persons named were sworn, held that there was no compliance with the statute, and the Secretary had no authority to entertain the protest. Hill and Teller, J. J.’s, dissented. (56, 57.)</p>

<p>Error to Denver District Court. lion.. Charles C. Butler, Judge. 4</p> <p> Department. </p>

<p>1. Pleadings — Motion for Judgment Upon, for defects in the pleadings is in effect a demurrer, and if allowed deprives the adversary party of his right to amend. It must therefore be denied. (74.)</p> <p>2. Slandek — What Words Actionable. In actions for defamation the words complained of must be considered in their commonly accepted sense. An employer saying of his clerk that he was “short in his accounts,” the words held actionable per se. (75.)</p>

<p>Contkaot — To Pay for Services Rendered to the Satisfaction of Promissor, does not constitute the party so promising the absolute and final judge as to the character of the service. If in point of fact he ought to have been satisfied, he is not to deny liability out of mere whim and caprice, or the desire to evade a just obligation. (79, 80.)</p>

<p>1. ^leadings — General Denial — Effect. Action, to recover moneys alleged to have been paid by plaintiff for the use of defendant, upon her promise of re-imbursement. Under the general denial defendant may show that the advance was made as a gift, without any promise or expectation of repayment. (90.)</p> <p>2. Evidence — Burden of Proof. In the same case, held, that the burden was upon plaintiff to prove the character of the undertaking upon which he relied. The rule that one alleging a gift must establish all facts essential to the validity of a gift, held inapplicable. (90, 91.)</p>

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

<p>Error to Denver District Court. Hon. Granby Hill-yer, Judge.</p>

<p>1. Appears and Error — Motion for a Neto Trial, is a condition precedent to the maintenance of error to review the judgment. Rules of Practice 19. (100.)</p> <p>2. -Limitation. A writ of error sued out after the lapse of</p> <p>one year from the rendition of the judgment dismissed. (100.)</p> <p>3. Practice — Motion for a New Trial — Time of Filing. 'The motion must be filed within five days from the announcement of the judgment, or within such further time as is allowed hy order of the trial court. (100.)</p>

<p>1. Ne Exeat — Scope of the Writ, has not been enlarged by the code. (101.)</p> <p>Petitioner being defendant in an action for slander was arrested and detained under a writ of Ne Exeat. He was discharged upon his petition under the habeas corpus act'. (101.)</p> <p>2. Supreme Court — Jurisdiction. Petitioner being unlawfully detained under process from the District Court, this court entertained his .petition under the habeas corpus act, and ordered his discharge. (101.)</p>

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

<p>Release — Execution Denied — Evidence. Servant claiming to have sustained an injury which he attributed to the negligence of the master, asserted a claim for damages. The master denied liability. After many interviews the servant accepted a sum offered by the master, and- executed a release. He then returned to the service and continued therein for more than one year, performing service, and receiving his wages, making no complaint in respect to the injury. Subsequently he instituted an action, and testified upon the trial that he had no recollection of the adjustment, or any negotiations for settlement, or the execution of the release, but not denying his signature or claiming that any misrepresentations had been made to' him, or any solicitation or improper inducements on the part of the master. Held, that the plaintiff had not sustained the burden resting upon him to overthrow the release, and that defendant was entitled to a directed verdict. (108.)</p>

<p>1. False Imprisonment — Plea of Guilty, Effect. One who pleads guilty to the charge of violating a municipal ordinance cannot maintain an action for the arrest upon such charge, even though alleging malice. (111.)</p> <p>2. Arrest — Search of Prisoner. Defendant', the town marshal, arrested plaintiff for disturbance of the peace, conducted him to the calaboose, searched him, and took from his person a sum of money. When the prisoner was brought before the magistrate the marshal returned to him the same money which he had taken. There was no-evidence of any malice, or improper purpose, on the part of the officer, any use of the money, or any actual damages sustained by plaintiff.</p> <p>Verdict directed for defendant, and judgment thereon affirmed. (110, 111.)</p>

<p>Appeal and Error — Verdict on Conflicting Evidence, under proper instructions, will not be disturbed. (114.)</p>

<p>1. Pleadings — Waiver By Amendment. One who, upon objection sustained to his pleadings, amends, conforming to the views of the court, cannot assign error to the order sustaining the objection. (115.)</p> <p>2. - Municipal Corporations — Vacating Street — Labor Performed. Petition of landholder to vacate a street. Uncontradicted evidence of even- a slight expenditure of money in improving the street, held, sufficient to defeat the petition. (115, 116.)</p>

<p>Negotiable Instruments — Endorser—Presentment for Payment. To charge the endorser of a promissory note, executed by two or more persons not partners, no place of payment being specified, presentment for payment must be made to each of the makers. (Rev. Stat., sec. 4541.)- (118.)</p>

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

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

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

<p> Original Petition for Writ of Mandamus. </p>

<p>1. Ckiminal Law — Information—Formal Defects. An information under chapter 151 of the Laws of 1907, for burglary, charged the use of explosives “with the purpose, etc.,” instead of “for the purpose, etc.” The information also failed to aver expressly the incorporation of the owner of the building. Held, too late after verdict. (Rev. Stat., secs. 1956, 1978, 1986.) (133.)</p> <p>2. Burglary — Title to the Premises. A banking corporation having possession of the building, burglariously entered, occupying it for the conduct of its business, is the owner, for the purposes of a prosecution for the burglary. (133.)</p> <p>3. Writ of Error — Questions Not Presented Below. Information for the burglary of “the banking house of the La Jara State Bank, a corporation.” Suggestion that the incorporation of the bank was not proven will not be heard, if first presented in this court. (134.)</p> <p>Motions for a new trial, and in arrest of judgment, alleging that the information “does not state in correct form, the corporate capacity of the bank,” and that “the evidence does not support the verdict,” held, not sufficient to present in the lower court the sufficiency of the allegation complained of, or the sufficiency of the evidence. (134.)</p> <p>4. -Corporate Name, warrants the inference of corporate capacity. (135.)</p> <p>5. Intent. It is not essential to a conviction under chapter 151 of the Acts of 1907 that the crime intended in the burglarious entry should have been actually committed. (135.)</p>

<p>1. Contracts — Rescission. A contract cannot be rescinded in part. Plaintiff, in the purchase of real estate, transferred to defendant an article of personal property. Having accepted a conveyance of the realty, and delivered the personalty, he afterwards brought replevin for the goods, claiming that he had been induced to enter into the agreement by defendant’s false representations as to the value of the lands. Held, an attempt to rescind in part. Judgment for plaintiff reversed. (139.)</p> <p>2. Pbotoipal and Agent — Evidence of Agency. While defendant was attempting to negotiate , a . sale to plaintiff of a site for a dwelling, plaintiff mentioned that he had an auto car, and that if plaintiff would sell it, he would pay a commission. _ Defendant, not accepting this employment, proposed a purchase by plaintiff of particular real estate, putting in the car as part payment, which arrangement was finally consummated, defendant acquiring the car as part of the transaction. No commission was paid defendant by either of the other parties. Held, that defendant was not the agent of plaintiff to sell the car. (140, 141.)</p> <p>3. Trial — Questions for the Jury. Replevin, the complaint charging the procurement of the chattel by fraudulent representations. The testimony as to the alleged representation being in conflict, held, that the question was for the jury. (143.)</p>

<p>1. Water Rights — Change in Point of Diversion — Writ of Error, lies to review a decree allowing tlie change. Fort Collins Co. v. Larimer and Weld Co., 58 Colo. 183, followed. (145.)</p> <p>2. -Decree, must prescribe such terms and conditions as will prevent injury to others.</p> <p>A decree allowing a change in the point of diversion of a specified volume of water ordered amended so as to allow the change only on request of petitioner, or his successor in interest, and only while the water so diverted, is applied to the irrigation of the land described in the petition. (146.)</p>

<p>1. Criminal Law. — Verdict. A verdict finding the accused guilty of “obtaining money by false pretenses as charged in the first count of the information,” is not a special verdict, nor incomplete. The offense is well described under the act of 1891 (Laws 1891, 125, sec. 4, Rev. Stat., sec. 1849). (153.)</p> <p>Even without any attempt to name the offense the verdict would have been technically sufficient, as it clearly manifests the intention of the jury. (153, 154.)</p> <p>Information for obtaining both money and other personal property by false pretenses. Verdict guilty, and “the value of the property so obtained $5,000.” Whether the jury included in the finding of value the money obtained, is immaterial. Money is as much property as are other personal goods. (154.)</p> <p>2. •--False Pretenses — Evidence. The false pretense being that the prisoner had title to certain lands, held, it was not required that the people should prove title in another. It is sufficient if this appears by the whole evidence. (154.)</p> <p>3. -Information Construed. Information charged that the accused “claimed to own, and have the right to sell,” certain lands. Held, to import that the accused represented that the title was vested in him, and that he had power, right and authority to convey the lands, by virtue of the title, and not by other right or authority. (155.)</p> <p>4. ■-Obtaining the Property — Goods Under Chattel Mortgage, which the accused assumed, were obtained by his false representations that he had title to certain land for which the goods were exchanged. That the goods were afterwards sold under the mortgage is no defense to a prosecution for the false representation. The transaction is to be treated as a sale for cash, and he is not to be heard to say that he obtained nothing. (156.)</p> <p>5. -Evidence — Produced on Cross-Examination of Accused. Evidence going to establish a phase of the accusation does not lose its substantive character by being brought into the case upon the cross-examination of the accused, and his subsequent contradiction by witnesses sworn in rebuttal. (156, 157.)</p> <p>6. -Order of Proof. Whether evidence in chief shall be received in rebuttal is within the sound discretion of the court. (157.)</p> <p>7. -Instructions■ — Construed. The 'court charged that if defendant “with intent to defraud” the prosecuting witness, did by false representations specified, obtain from the prosecutor the goods and money mentioned in the information, they should convict. Held, that the phrase “with intent to cheat and defraud,” runs through, relates to, and characterizes all the several acts and representations referred to; that the jury could not have been misled into supposing that they were relieved from finding every material allegation of the information, beyond reasonable doubt, before they could render a verdict of guilty. (158, 159.)</p>

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

<p>1. Appeal and Error — Interlocutory Order, not occasioning any injury to defeated party is harmless, even though erroneous. (170.)</p> <p>2. Eminent Domain — Petition—Requisites. The petition for a way for an irrigating ditch, over the cultivated lands of another, need not aver that the way sought is the shortest and most direct route practicable, etc. The provisions of Rev. Stat., sec. 3171, are not jurisdictional. Teller, J., dissented. (171.)</p> <p>3. -Practice. If the way sought for an irrigating ditch is not the shortest and most direct route practicable, the respondent should present the question in limine. Voluntary submission of the cause to the jury waives the objection. (172.)</p> <p>4. ■-Damages — Of What Date To Be Estimated. The land taken is to be valued as of the day of the trial. Rev. Stat., sec. 2431. (173.)</p> <p>5. ■-What Damages To Be Allowed. All present and prospective, which are the natural, necessary, or reasonable result of the taking, except such as may arise from negligent or unskillful construction. (173.)</p> <p>6. ——Rental of Lands While in Possession of Petitioner, not to be allowed without evidence of rental value. (173.)</p> <p>Whether allowed in any case, quaere.</p> <p>7. -Sec. 2416, Rev. Stat., is to be construed in connection with sec. 3171. Teller, J. (175.)</p>

<p>1. Injunction — Discontinuance■ — Effect. Voluntary discontinuance, for a cause arising after the allowance of an injunction in the action is not a confession that the injunction was improperly sued out. (179.)</p> <p>2. -Emergency Bond — Liability—Statute Construed. Plaintiff obtaining an injunction, without notice to his adversary is liable upon, the bond required by Rev. Code, sec. 164, only in case it is adjudged by the court that no emergency existed, or that plaintiff created or connived at it. (179.)</p> <p>3. -W7io Entitled. No single defendant, where there is mor* than one, is entitled to the full penalty of the emergency bond. (179.)</p> <p>4. Practice — Notice—When Required. Notice of an Order of Court need not be served upon one wbo has actual knowledge of its contents. (179.)</p>

<p>1. Constitutional Law. Legislative Questions, under sec. 3 of art. VI, of the Constitution, must have reference to pending legislation. (189.)</p> <p>Questions referring to statutes of long standing, and requiring the determination of the right and duty of certain officials, are not to be determined ex parte. (190.)</p> <p>2. -The Attorney General, is the statutory legal advisor of the legislative and executive departments. (190.)</p>

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

<p>1. Evidence — Judicial Notice — Record of the Oourt. Every part of the record of a pending cause is judicially noticed by the court where the cause is pending, in every proceeding in that cause.</p> <p>The record in another cause must he brought to attention in accordance with established methods of procedure. (195.)</p> <p>2. Criminal Law. Seduction under pretense of marriage is not identical with seduction under a promAse of marriage. (194, 196.)</p> <p>3. --Fair Trial. An accused person is entitled to a trial conducted with all due care and circumspection. (196.)</p>

<p>1. Bankruptcy — Filing Secured Claim — Effect. .Filing a secured claim in the bankruptcy court is no waiver of the creditor’s lien. It confers on that court no control of the security, or its enforcement. (198.)</p> <p>The creditor is not estopped to assert his claim and enfoi'be his lien in the state court. (199, 200.)</p> <p>2---What Discharges the Lien? Neither the sale of the bankrupt’s property, nor his discharge in bankruptcy, nor his composition with his creditors — the secured creditor not taking part. (200, 201.)'</p>

<p>Appeal and Error — Conflicting Evidence. A decree rendered upon conflicting, contradictory, and unsatisfactory evidence, -will not be disturbed.</p>

<p>Railway Mortgage — Preference of Ordinary Claims. According to the general rule in equity, ordinary liabilities of railway company are preferred to the mortgage debt, only when accrued within six months prior to the appointment of a receiver. (205.)</p> <p>The rule is departed from only in extreme cases and for special reasons. (205.)</p> <p>The salary of an attorney, accrued, all of it, more than 13 months prior to the appointment of the receiver, no effort having been made to enforce payment, and the attorney having all the time full knowledge of the bonded indebtedness, held, not entitled to preference. (205.)</p>

<p>Elections — Nomination by Petition. Under c. 4 of the Acts of 1910 it is not required that those subscribing the petition for the nomination of a candidate shall be registered voters. The subscriber’s character as a voter being established by the affidavit prescribed by the statute, no more can be required. (208, 209.)</p>

<p>Master and Servant — Assumption of Risk — For the Jury. The servant assumes, not only such risks as from the nature of the business, as ordinarily conducted, he must have known, but those which by availing himself of the opportunities afforded to him, he would have known. (213.)</p> <p>Plaintiff was employed as a driver in a coal mine. The entry in which the cars were operated was unlighted. At one place it was necessary that the driver should stop his train, and pass through a curtain in order to attach another car. The curtain was of such length that a portion dragged upon the floor, and plaintiff, attempting to make the passage, tripped upon this and received a dislocation. He had been employed in the mine for five months. Other witnesses had noticed the condition of the curtain, but plaintiff denied having observed it, and testified that he had passed the curtain on foot, only on one or two occasions. Held, that the question was one upon which fair men might reasonably differ, and was therefore for the jury. (212-214.)</p>

<p>1. Corporations — Liability of Directors — Annual Report — Statute Construed. Chapter 102 of the Laws of 1911, is penal, so far as it concerns the acts and omissions of the directors, and in the determination of their liability is to be strictly construed. (216.)</p> <p>When their liability is clearly shown the statute is remedial as to creditors, and to be construed liberally. (216.)</p> <p>2. -Assignee of Creditor, is entitled to an action against the directors. (218.)</p>

<p>Error to Lincoln District Court. Hon. W. S. Morris, Judge.</p> <p> Department. </p>

<p>1. Appeal and Error — Abstract. Questions not presented by the printed abstract are not considered. (223.)</p> <p>2. Assxsnment — Of Chose in Action, must, to be effectual, either in law or equity, amount to such an actual or constructive appropriation of the subject-matter assigned as to confer a complete and present right, even where the co-temporary exercise of the right is impossible. (224.)</p> <p>The phraseology used is not important if the intention to transfer is manifest. (224.)</p> <p>Perkins & Co. contracted with the United States to construct a certain work. Duncan and others were .sureties of Perkins & Co., in their contract. Perkins & Co. while proceeding with the work applied to plaintiffs for credit upon supplies, and to secure plaintiffs, made a written request to the Secretary of the Interior to send all checks which might be issued to them, for the work, to plaintiffs. Perkins & Co. having abandoned the work, the sureties assumed it, carried it to completion, and having possessed themselves of the checks, applied the money to discharge the expense of the work. Plaintiff thereupon brought their action against Duncan & Co. for the amount of the checks, alleging an assignment thereof and notice to Duncan & Co. Held, that the direction to the Secretary of the Interior to transmit the checks to plaintiffs did not amount to an assignment, even although there was an oral agreement by Perkins & Co. to endorse them, and that although the sureties received and collected the checks, they were not liable to plaintiffs for the amount. (222, 223.)</p> <p>3. Principal and Surety — Rights of Surety. In the same case, held, that even though there was an equitable assignment to plaintiffs, the right of the sureties related to the date of the bond, and was superior to that of plaintiffs under the assignment. (225.)</p> <p>4. Subrogation — Of Surety. The surety having paid the debt for which he is bound, is, for his indemnification, at once subrogated to all rights, remedies and securities of the creditor. (226.)</p> <p>5. Evidence — Burden of Proof. The plaintiff • has the burden of establishing every averment material to his action which is put in issue by the answer. (224.)</p>

<p>1. Replevin — Valuation of Goods — Time Of. When neithér fraud, malice, or wilful wrong in the taking or detention of the goods is alleged, the measure of damages is the value of the goods at the time of the taking, or illegal detention. (228.)</p> <p>When this date is established, without controversy, the court may instruct the jury to assess the value as of that date. (228.)</p> <p>2. -Practice — Verdict—Judgment. Where the goods in question have been consumed by defendant and therefore cannot possibly be delivered, it is proper to accept a finding of guilty, assessing the value. To require an alternative judgment under sec. 246 of the code would be a useless formality. (229.)</p>

<p>1. Municipal Corporations — Power of Toion in Granting a Franchise in the Streets. A town organized under the general law is hot empowered by N Rev. Stat., sec. 6676, to- prescribe the rates which a street railway company occupying the street under a franchise of the town may exact for its service. Whether the rule is the same in the case of a municipality organized under article XX of the constitution, is not decided. (233, 234.)</p> <p>2. Utilities Commission — Powers. Under c. 127 of the Acts of 1913, the Public Utilities Commission are entrusted with the supervision and regulation of all services rendered by the persons and corporations therein referred to, throughout the state — including rates and regulations established by previous contract. (236.) Gabbert, C. J., and Teller, J., dissent.</p> <p>3. --Remedy for Errors of the Commission. Every order or decision of the condition may be reviewed by the Supreme Court, under the provisions of the act. An equitable action to restrain the enforcement of the order complained of will not lie. (241.)</p>

<p>1. Evidence — Admissions in Pleading. Action upon an assigned policy of insurance. The answer of the insurer conceded that the policy -was the property of the assignee. Held, a waiver hy it of the conditions of the policy requiring the delivery of the assignment to the insurer. (248.)</p> <p>2. Like Insurance — Change of Beneficiary, can be accomplished only by following the terms of the policy, or what is prescribed in the charter or by-laws of the insurer, or by statute. A change is not affected by the mere assignment by the insured of his interest in the policy, never approved by the insurer, where the instrument required that such change shall be valid only upon its endorsement upon the policy by the insurer. Johnson v.-Heio York Go., 56 Colo. 178, followed. (249-251.)</p>

<p>Error to Alamosa District Court. Hon. Jesse C. Wiley, Judge.</p>

<p>Error to Las Animas District Court. — Hon. A. Watson McHendrie, Judge.</p>

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

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

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

<p>Divorce — Alimony■—Counsel Fees, etc. Where in a wife’s action for a divorce, the marriage, the destitute condition of the wife, and the husband’s ability are shown, temporary alimony, counsel fees, and costs must be awarded.</p>

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

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

<p>Attorney and Client — Plaintiff’s Right to Dismiss Sis Action. The plaintiff is entitled, to dismiss his action even though he has stipulated with his attorney that the latter shall receive, as his fee, a share of whatever is obtained by the litigation or the settlement thereof.</p> <p>If the attorney is entitled to an action for the discontinuance of which he complains he is not to recover under the contract.</p>

<p>Appeal and Error — Practice—Tender of Record — Extension of Rule. Where the period is allowed by the Rules of Practice (Rule 20, Sub. C.) for the tender of the record in error has elapsed, there can be no extension thereof. The record having been tendered only after such default, and improper extension, the writ of error was dismissed.</p>

<p>Error to La Plata District Court. Hon. William N. Searcy, Judge.</p>

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

<p>1. Action — Defenses—Failure of Consideration. Where to an action on a promissory note defendant pleads total failure of consideration evidence of partial failure is inadmissible.</p> <p>2. Damages — Evidence as to. Where there is no evidence from which the damages claimed by defendant, in his counterclaim, can be ascertained, nothing can be allowed.</p>

<p>Error to Clear Creek County Court. Hon. Walter S. Hobbs, Judge.</p> <p> Department. </p>

<p>Error to La Plata District Court. Hon. William N. Searcy, Judge.</p>

<p>Error to Las Animas District Court.- Hon. Watson McHendrie, Judge.</p>

<p>1. Action — Legal or Equitable. Plaintiff alleged that she had deposited with defendant money to be loaned for her account, upon safe real estate securities, that defendant in fact appropriated the money, and turned over to plaintiff a promissory note which was his own property. Defendant admitted the employment but denied the deceit. The jury having found that defendant was acting as the agent of plaintiff, held, that though plaintiff had accepted the note with the indorsement of defendant, “Without recourse,” the action was not an action in equity to set aside a completed written contract; that it was the violation of defendant’s duty, not the fraud, which was the basis of the action.</p> <p>2. Principal and Agent — Liability of Agent. An agent who being employed to lend the money of his principal converts it to his own use is liable either in assumpsit, or in an action ex delicto.</p> <p>3. -Interest. The agent is liable for interest upon the money from the date of the transaction. (Rev. Stat., sec. 3162.) '</p> <p>4. Verdict — Misnomer in. A verdict allowing as interest what the statute allows as damages, sustained.</p>

<p>Error to La Plata District Court. Hon. W. N. Searcy, Judge.</p> <p>On Rehearing.</p>

<p>1. Contract — Construed. One employed to sell real property does not perform his contract by merely finding a purchaser ready, willing and able to purchase.</p> <p>2. Rear Estate Broker — Bight to Commissions. The owner is entitled to know the name of the proposed buyer, and so long as there is uncertainty as to this the broker is not entitled to commissions.</p> <p>Action by broker for commissions upon the sale of real property, the agency being limited in time, plaintiff alleging a sale to a certain syndicate. A letter and telegram from the agent to his principal announcing a sale to a person named, as representing a syndicate, not giving the name of any of those composing the syndicate. Held, without effect as to the principal. The evidence examined, and held entirely insufficient to establish the existence of the alleged syndicate, or that in fact there was any effectual agreement of any person to purchase the property.</p> <p>3. -Broker’s Authority. Authority to sell real property was limited to a specified day. An agreement of the broker made on the day preceding the lapse of his agency provided that abstracts should be furnished and time allowed to the purchaser to examine them. Held, beyond the broker’s authority.</p> <p>4. -Agreement of Purchaser. An agreement to purchase real estate, only in case the title is satisfactory to the buyer’s attorney goes for naught if the attorney is not satisfied; if honestly dissatisfied it is immaterial that he ought to be satisfied.</p> <p>A promise to purchase, “if on examination everything is satisfactory,” is without effect.</p> <p>So an agreement to purchase, subscribed after the agent’s authority has expired, and dated as of a day prior to expiration.</p> <p>5. Evidence — Presumptions. There is no presumption that a check upon a bank will be paid on presentation.</p> <p>Or that a draft upon an individual will be paid on demand.</p>

<p>Error to Denver Cownty Court. Hon. W. C. Hood, Jr., Judge.</p>

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

<p>1. Evidence — Examination of Expert — Hypothetical Question. Action by attorney for professional services. Held, proper to interrogate another of the profession as to the value of the services, “Assuming that they were rendered as described by plaintiff.”</p> <p>2. -Expert Hearing Only Part of the Plaintiff’s Cross-Examination was held nevertheless qualified, where it appeared that upon cross-examination plaintiff had in no respect modified his previous testimony.</p> <p>That the jury awarded plaintiff a much smaller sum than in the opinion of the other attorneys he was entitled to, held to dispel any possible inference of injury from the fact that one of those testifying had heard but part of the cross-examination.</p> <p>8. -Lost Writings. Attorney suing corporation for professional services rendered testified that he had once seen a book of corporate minutes, that later he was unable to find it, and the officers denied its existence. Held, proper to admit parol as to the substance of a resolution of the directors set down in this book.</p> <p>4. -Corporate Records, not identified as authentic are not admissible.</p> <p>Nor is the stock certificate book, against a party who had no part in the issuance of the stock.</p> <p>5. Appeal and Erroe — Writings not set ou,t in the record, are not considered.</p> <p>So of questions not presented by the motion of a new trial.</p> <p>6. Trial — Improper Remarles of Counsel, provoked by like remarks of opposing counsel, persisted in after a warning from the court, disregarded.</p> <p>7. Contracts — Ratification. A contract .made by those named as directors in the articles of association of a corporation, for the employment of an attorney, appeared to have been made before the articles were filed. But the same gentlemen acted as directors, for years afterwards, and all this time recognized the contract, and accepted the services of the attorney thereunder. Held, a ratification.</p> <p>8. Instruction — Considered as a Whole. What if standing by itself might be prejudicial, may be qualified by another passage of the charge.</p> <p>9. -Not Pounded -Upon the Evidence, are properly refused.</p> <p>10. -Matters Not in Issue. So of a charge referring to matters not in issue.</p>

<p>Error to Huerfano District Court. Hon. Granby Hillyer, Judge.</p> <p> En banc. </p>

<p>Non-Suit — Voluntary. Plaintiff’s motion to dismiss. his action without prejudice, while c. 10 of the Code was in force, held, equivalent to a voluntary non-suit.</p>

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

<p>1. Principal and Surety' — Construction of Contract. The contract of a compensated surety is to he enforced according to the plain meaning of the words employed.</p> <p>2. -Surety in Builder’s Contract, is entitled to the benefit of those provisions of the contract which look to compelling performance by the contractor.</p> <p>The contract provided that only eighty-five per cent of the value of materials on hand, and labor and materials expended, should be paid "monthly; that before any payment the contractor should exhibit vouchers showing that all his bills were paid, as the work progressed; and that the owner might retain out of each payment an amount sufficient to indemnify him against liens. Held, that the contractor’s surety was entitled to the benefit of these provisions, and the owner having ignored them and paid the full contract price prematurely, the surety was discharged.</p>

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

<p>1. Husband and Whte — Unity of. The legal fiction that the husband and wife are one no longer exists.</p> <p>2. -The Estate 7>y Entireties is abolished by our statute.</p>

<p>1. Contracts — Construction. The circumstances attending the •execution of a writing are to be taken into account in the interpretation thereof.</p> <p>Where, of two admissible constructions of the words used, one will render the writing effective, the other nugatory, the former is to be accepted.</p> <p>2. -Will or Deed. Bouler executed a writing declaring “This to be my wish and deed. (1) All just debts shall be first paid from my •estate. (2) In consideration of board and other kindness, I sell and convey all the rest of my estate,” to three persons named. He was in fact indebted to the persons mentioned, for board, lodging and care. The paper being without the attesting witnesses required by statute, and therefore invalid as a will, was construed to be a deed.</p>

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

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

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

<p>Intervention — Where Allowed. Action against a railway company for damage to the properties of plaintiff by fire set out by a locomotive. Judgment for plaintiff in $3400 had been directed by this court (Rhinehart v. Denver Rio Grande Co., 61 Colo. 369). Certain insurance companies had paid plaintiffs $2500, insurance upon the same properties, and now filed petitions in intervention, claiming judgment for this amount. Their petitions being stricken off, they brought error.</p> <p>Supersedeas denied and judgment affirmed. Opinion by Hill, J.</p>

<p>Appeal and Error — Where Error Lies. The relation of remedies to rights is fundamental, and cannot be disregarded at will. No objection haying been made to the entry of judgment, and no motion for a new trial filed (Rules of Practice 19), the judgment is affirmed.</p>

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

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

<p>Error to Conejos District Court. Hon. Charles C. Holbrook, Judge.</p>

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

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

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

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

<p>1. Appeal and Error — Bill of Exceptions. When the evidence is not brought up, this court will assume that it supports the findings of thé court below upon the facts.</p> <p>2. Mechanic’s Lien — What Properties Subject. The properties of an irrigation district are not subject thereto.</p> <p>Nor are those of a de facto public corporation.</p> <p>3. -For What the Lien is Given. A new head-gate and weir, placed in the ditch of an irrigating company, by a third person for use upon account of its enlargement, gives no right of lien upon the original ditch.</p> <p>Nor does the enlargement of the head-gate and weir, which are but part of the entire system, even though the new ones are required to supply needs created by an enlarged-use.</p> <p>4. Corporation — De Facto. A corporation dissolved by judgment of ouster, in the District Court, sued out a writ of error to reverse this judgment and procured a supersedeas. Held, still a corporation de facto.</p> <p>5. -Powers of Corporation De Facto. Everything done by a de facto corporation, while acting as such with the connivance of the public, and which would have been of legal effect if it had been a corporation in law, must be held of the same effect.</p> <p>6. -Dissolution — Effect. Property acquired by a de faeto corporation does not, upon its dissolution, revert to the former owner, nor is any right created in favor of other parties, which right did not exist during the corporate life time.</p>

<p>1. Instructions' — Should Be Confined to the Issues. An instruction upon an issue not presented by the pleadings should be refused.</p> <p>2. Pleadings — General Denial. Where in an action for goods sold the defendant relies upon an implied warranty of quality and fitness, he must plead this matter affirmatively, and cannot show such warranty, and its breach under a general denial.</p> <p>3. -Plea of Implied "Warranty, in an action for goods sold, and its breach, must give color, i. e., admit the material facts alleged by plaintiff, either in terms or effect. A plea which expressly denies the contract alleged by plaintiff, impliedly denies liability, regardless of the quality of the goods.</p> <p>4. New Trial — "Weight of Evidence. A verdict not manifestly against the weight of evidence will not be disturbed.</p>

<p>Taxes — Illegal—Injunction—Payment—Effect. The payment of a tax entitles the treasurer to the discontinuance of an action instituted by the taxpayer to enjoin the collection of such tax.</p> <p>The taxpayer is entitled to a refund of the tax, if illegal.</p>

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

<p>Floating Indebtedness oe a Town — Statute Construed. Judgments aaginst a town, unsatisfied, and which it has no means to satisfy, are part of its floating indebtedness within the meaning of c. 144 of the Laws of 1909.</p>

<p>Criminal Law — Former Jeopardy. One acquitted of sexual intercourse with an unmarried female under eighteen years óf age is not liable to prosecution under the statute for failure to support the illegitimate child alleged to be the fruit of the same illicit intercourse averred in the first information.</p>