Volume 68 — Colorado Reports

<p> Error to Morgan. District Court, Hon. L. C. Stephenson, Judge. </p>

<p>Justice of the Peace — Appeals—Bond. An appeal bond although approved was neither filed by nor left with the justice, but carried from him to the clerk of the county court, who failed to approve it. The appeal was dismissed.</p>

<p>Practice in Error — Record. The record presented upon application for a supersedeas failing to show an objection taken to any instruction given, or that any instructions were tendered on the part of the accused, or any exception taken to the giving or refusal of any instruction, the instructions given being fair, rulings as to the admission or exclusion of evidence devoid of prejudice, and no errors being assigned, the judgment was affirmed.</p>

<p>1. Jury — Drawing. The clerk having called the sheriff to assist him in drawing a jury, the sheriff, instead of playing the part of an inspector, himself assumed the principal role in- the ceremony, thrust his hand into the box, drawing the names therefrom and handing them to the clerk.</p> <p>The drawing was an open and fair one, and the names of the jurors were drawn by chance. Held that the purpose of the statute was substantially accomplished; and counsel for the accused having witnessed the proceeding, and made no objection until the jury were empaneled, his motion to quash the panel was properly denied.</p> <p>2. Criminal Law — Assistant to District Attorney. The District Court has inherent power to appoint an assistant to the District Attorney.</p> <p>To constitute error in such appointment an abuse of discretion must affirmatively appear.</p> <p>That the assistant is not appointed until after the jury were empaneled was made a ground of complaint by the accused, suggesting that by the late appointment he was prevented from interrogating the jury as to their acquaintance with and relationship to the assistant, that he might the more intelligently exercise his right of peremptory' challenge. There being no attempt to show that the accused was in fact prejudiced, or even that he had exhausted his right of peremptory challenge, or exercised it in a single instance, the objection to the appointment was overruled.</p> <p>8. Practice in Error — Exception—When Necessary. An exception to the appointment of an assistant to the District Attorney should be taken when such appointment is announced. To defer it until the record is made up waives the objection. Judgment affirmed on the authority of Mulligan against The People No-9401.</p>

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

<p>Irrigation — Adjudication—Who May Assail- — Statute Construed. The phrase “any party or parties feeling aggrieved” as used in sec; 3315 of the Revised Statutes does not include appropriators in another water district, who are not parties to the adjudication.</p> <p>Parties aggrieved by such decree may obtain relief by pursuing the provisions of Rev. Stats., sec. 3313.</p>

<p> Error to Logan District Court, Hon. L. C. Stephenson, Judge. </p>

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

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

<p> Error to Denver District Court, Hon. Samuel W. Johnson, Judge. </p>

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

<p> Error to Denver District Court, Hon. John I. Mullens, Judge. </p>

<p> Error to Morgan District Court, Hon. L. C. Stephenson, Judge. </p>

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

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

<p>1. Negligence — Right of Property Owner to Prevent Invasion Thereof. The owner of a city lot may erect a fence to obstruct travel across the corner thereof.</p> <p>The character of the obstruction does not concern the public save so far as it will or will not afford notice of its presence to those attempting to use the cut-off. In an action by one injured by collision with the fence, in the night-time, the amount of travel over the cut-off, and the length of time it had been used are to be considered in determining the question of negligence.</p> <p>:2. Instructions — Misleading. In an action for negligence, tried in the County Court on appeal from a justice of the peace, the jury were referred to the declaration for the detail of the negligence charged. There being no pleadings in such ease, Held that the jury were ieft without light as to what was alleged against defendant.</p> <p>o. Assuming What is in Dispute, is error.</p> <p>4. Too General. Defendant erected a fence to exclude travel across the corner of his lot. Plaintiff driving against it in the evening was injured, and brought an action for the injury. Thé .jury were told that it would be negligence to place in the former used road a barbed wire fence that might occasion damage to a traveller “by the ordinary casualties” of travel. Held too broad in the passage quoted. That the only damage for which defendant would be liable was that which might result from negligence in not giving notice of the presence of the fence; that the instruction took from the jury the question of the sufficiency of the notice of the change in the passage.</p>

<p> Error to Weld County Court, Hon. Herbert M. Baker, ■ . Judge. </p>

<p>Criminal Law — Costs. Sec. 3877 of the Revised Statutes has no application to a trial in the County Court on appeal from a conviction before a justice of the peace. The prosecuting witness cannot be adjudged to pay the costs of the prosecution.</p>

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

<p>1. Review op Findings op Utilities Commission — Jurisdiction of Supreme Court. Under the statute the Supreme Court is authorized to set aside or modify the order of the Commission, if not supported by the evidence; but not to revise findings of fact upon conflicting evidence.</p> <p>2. Jurisdiction op Commission. The local service of a Public Utilities Corporation doing business at Denver is controlled by the City, and not by the Utilities Commission. The local freight service, i. e., hauling between points within the switching limits of the Denver yards is therefore beyond the jurisdiction of the State Commission.</p> <p>8. Considerations Controlling the Commission. In determining the reasonableness or unreasonableness of the carrier’s charge, switching ought not to pay all the interest and taxes upon the terminal property, because the property is devoted to switching only in part, and is in fact part of the line. Each of the several uses to which the terminal and its facilities are devoted should bear a fair proportion of the terminal expense.</p>

<p>1. Judgment — Record—Effect. The record of a judgment by default reciting the production of evidence sufficient to sustain the complaint is conclusive upon this question.</p> <p>The recitations of the record were held further supported by an order allowing fees to the attorneys of the plaintiffs, pursuant to a provision of the notes which were the ground of the action.</p> <p>2. Fraud — Evidence. Judgment by default upon certain promissory notes of a corporation. Petition to vacate the judgment, for fraud in procuring the notes. The evidence examined and held to dispel the accusation of fraud.</p> <p>2. Practice in Error — Discretion. The court will not interfere with discretionary action, except in a clear case of abuse.</p> <p>4. Corporations — Transactions With Directors. The lending of money to a solvent corporation by the directors thereof is not illegal.</p> <p>5. Judgment — Petition to Vacate, not filed till three months after its entry, and thirty days after execution issued, held too late.</p> <p>6. Evidence. Promise of a creditor not to press his claim, made without consideration, is no ground to vacate a judgment by default based upon such claim.</p> <p>The promise of a stockholder in a corporation not to press a claim against the corporation, “to the detriment of other stockholders”, depends upon so many uncertainties that a litigant relies thereon at his peril.</p> <p>7. Admission of Validity of Part of the Indebtedness — Effect. Where the petition to vacate a judgment by default admits the validity of a portion of the indebtedness upon which such judgment is founded, the petitioners should offer payment, or permit judgment for what is so admitted.</p> <p>8. Motives of Creditor. Where neither the right of recovery nor the propriety of the procedure is disputed, the courts will not concern themselves with the creditors’ motives.</p> <p>9. Evidence — Offer of Proof — Presumptions. It is presumed that one making an offer of proof sets forth the evidence proposed to be produced, in substance, and not in detail.</p> <p>An offer to prove that a judgment by default was entered without verification of the complaint, evidence of the verity of the promissory notes upon which it was based, the assignment of certain of them which had been assigned to • plaintiff — all the papers referred to being present in court and the authenticity thereof not denied, was held wholly insufficient-</p>

<p> Error to Chaffee District Court, Hon. James L. Cooper, Judge. </p>

<p>1. Statutes — Construction. Provisions contained in a statute relating to civil actions will not be construed to extend to criminal prosecution.</p> <p>2. Costs — In Criminal Prosecutions — Exemptions. Sec. 3628 of the Revised Statutes relates solely to costs accrued in civil actions.</p>

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

<p>1. Embryo Corporation — Liability on Contraéis of Those Promoting Its Organization. An agreement among those proposing the organization of a corporation, as to commissions to be paid to parties who assist in the project is not binding upon such corporation, when organized, unless it expressly or impliedly assumes the liability.</p> <p>The mere acceptance of property by the corporation paying therefor in full by the issue of its stock does not under the facts in this case warrant an inference of such assumption.</p> <p>2. Parties — Indispensable. Corporate stock being held in trust for several beneficiaries the trustee was decreed to transfer to the plaintiff such number of the shares that the residue would not suffice to supply all the beneficiaries, without determining’ which of the beneficiaries should bear the loss. Several of these beneficiaries were not parties to the suit. Held that the decree was erroneous unless the absentees were sufficiently represented.</p> <p>3. Judgment — Inconsistent. A judgment against several, the liability of one of' w'hom exonerates the others, is error.</p> <p>4. Contract — Consideration. An agreement upon past consideration is nudum pactum.</p> <p>5. Evidence — Parol, may vary a receipt.</p> <p>6. Pleading — Want of Consideration, need not be pleaded.</p>

<p>1. Statutory Proceeding' — Sufficiency of Statute. It is sufficient for any proceeding that it is authorized under any statute relevant thereto.</p> <p>2. Eminent Domain — Order for Possession, in the first instance, even if in violation of the constitution, does not vitiate the subsequent proceedings, if regular, unless it appears that' such order injuriously affected the rights of respondents. •</p> <p>3. Practice and Error• — Record. The questions as to which there is no evidence in the record will not he considered.</p> <p>4. -Brief. Counsel commended for the brevity and lucidity of the brief.</p>

<p>1. Contracts — Validity. Prank and John Lannon owned the stock of the defendant. Burris desiring to become interested in the enterprise, it was agreed that the property of the company should be valued at $100,000. Burris was unwilling or unable to pay for one-half of the stock, at this valuation, and it was agreed to issue $40,000 in bonds, so as to reduce the value of the shares to $60,000, and the arrangement was concluded accordingly, the bonds being issued one-half to the Lannons and one-half to Burris. Only $8,000 in all, was paid for the bonds, $4,000 by the Lannons and $4,000 by Burris. All this was agreed to and approved by meetings of the stockholders and Board of Directors, — the two bodies being composed of the same persons. The bonds were secured by mortgage of the company’s property. On bill to foreclose this mortgage it was contended by the corporation that the bonds were void for want of consideration under sec. 9, article XV of the Constitution. Held that in effect the bonds were sold at approximately par value; "that the distribution of the bonds among the directors was justified by the unanimous consent of the stockholders, and that the stockholders having acquiesced and participated in the transaction, were bound by it, as were those who succeeded to their interest.</p> <p>2. Corporations — Relation to Members. Where the stockholders have no equitable right they cannot assert any such supposed right, or obtain relief in respect thereto by acting through the corporate entity.</p> <p>3. --Power to Dispose of Assets. A solvent corporation may dispose of its assets as the stockholders see fit, so long as present creditors are not injured.</p> <p>4. Fraudulent Conveyances — Future Creditors, cannot complain.</p>

<p> Revieio to the Public Utilities Commission. </p>

<p>1. Public Utilities Commission — Powers. The commission is without power to fix rates in municipal corporations organized under Article XX of the Constitution; and does not acquire such jurisdiction even though such municipalities fail to act, or proceed illegally.</p>

<p>1. Constitutional Law — Civil Service. The amendment to the Constitution adopted in 1919 (Laws 1919, p. 343) provides that those holding places in the classified service when the amendment takes effect “shall retain their positions until removed, under the laws enacted ’in pursuance hereof.” Respondent was t, unlawfully holding a civil position when the • amendment became of force. Held he was not retained therein by the amendment.</p> <p>2. Words and Phrases — Holding a Position, means lawfully holding it.</p> <p>3. Judgment in Error — Effect. Quo Warranto, and judgment for respondent. Reversed on Error. Held that though the judgment below was not superseded, the effect of the judgment of reversal was to determine that respondent’s occupancy of the office was wrongful from the beginning.</p>

<p>1. Fraud — Statements of Value, between parties dealing at arms’ length are mere expressions of opinion; so statements as to the value of certain bonds, and that they are “collectible at any bank.”</p> <p>2. Pleadings — Statutory Denial, must be in the exact words of the statute. An averment in the reply that “plaintiff has not and cannot obtain sufficient information, &c.” held fatally defective.</p> <p>The statutory denial is not permitted in traversing the contents of a public record; and the addition of an express denial as a conclusion from the statutory denial does not aid the matter.</p>

<p> Error to Denver District Court, Hon. John I. Mullins, Judge. </p>

<p> Error to El Paso District Court, Hon. John W. Sheaf or, Judge. </p>

<p>Plaintiff was surety in the bond of a bank where the county treasurer deposited the moneys coming to his hands for taxes. A practice grew up by which the treasurer would deliver to the bank a receipt for the taxes of customers of the bank, and the bank would give credit to the treasurer for the amount of these receipts. The bank having failed the surety company was made liable for and paid to the treasurer, the total of the amounts so credited to him upon the books of the bank, and lost by its failure, and the treasurer paid the amounts to the county. In the bond of plaintiff to the treasurer Canon, was a provision that in ease of payment of a claim under the bond the company “shall be immediately subrogated to all the rights of the obligee, to the amount of such payment,” and the surety company brought its action claiming that the taxes upon the property of defendant were discharged out of the money which it had paid to Canon and that it was entitled to be subrogated to his right as treasurer’ to enforce a claim against defendant’s property to the amount of the tax, so discharged. Held that this contention was based upon the false assumption that the treasurer paid the tax with the proceeds of the judgment against plaintiff; that, in fact, in paying the judgment plaintiff paid no judgment to Canon, but a debt which it owed, not to Canon in his own right, but as county treasurer, and having paid nothing to him, it was not subrogated to any right of his.</p>

<p> Error to Arapahoe County Court, Hon. Geo. W. Dunn, Judge </p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p>1. Real Estate Broker — Right to Compensation. The broker who produces the purchaser, and is the procuring cause of the sale is entitled to the commisson, even though the sale is in fact accomplished by another. Defendant listed his land for sale with plaintiff, and with another, at a price lower than that named to plaintiff, one Richardson. Richardson sold the land to a purchaser whom plaintiff had brought to the country and to whom he had exhibited the land, and who would have purchased from him, but for the lower price named to Richardson. Plaintiff was entitled to his commission. ,</p> <p>2 Instructions — Construed, An instruction the plaintiff was entitled to recover if his failure to consummate the sale was “due to the act of defendant,” approved.</p> <p>3. Trial — Matters Not in Issue. Real estate broker suing for an agreed commission, the quantum meruit is not involved.</p>

<p>Municipal Corporation — Sidewalk. In actions against municipal corporations for personnl injury attributable to defects in the public walk, each case must, as to the character of the defect, be governed by its own circumstances.</p> <p>There was a space of eight or nine inches in the walk which was unpaved. The flagging beyond this space was higher than the uncovered space, of from an inch to an inch and a quarter. Plaintiff, parsing in the evening before the lighting of the street lamps, caught her foot on the exposed edge of the flagging, and suffered a fall with attendant injury. Held the case was properly left to the jury. Pueblo v. Smith, 57 Colo. 500, distinguished.</p>

<p>Statute — Construction. Sec. 7274. of the Revised Statutes which prohibits the examination of husband or wife against the other should be so construed as to work no injustice, if susceptible of such construction.</p> <p>Action by husband against an alleged seducer for the alienation of the wife’s affections.</p> <p>The wife testified that prior to meeting the defendant she had, because of the ill conduct of plaintiff, entirely lost her regard for him.</p> <p>Letters of plaintiff to the wife admitting his misconduct, and pray- ' ing forgiveness, were offered on behalf of defendant, and objected to as inadmissible under the statute.</p> <p>Considering that the state of mind of the wife towards the husband was directly in issue, that affection on her part was a pre-requisite to injury by its loss, and that to permit the husband to recover damages upon the mere presumption that wives entertain affection for the husband, denying material evidence to the contrary would be subversive of justice. Held that the letters were admissible, and that to exclude them was error-.</p>

<p> Error to Prowers District Court, Hon. A. Watson Mc-Hendrie, Judge. ■ </p>

<p>Practice in Error — Non-Suit. Evidence sufficient to go to the jury-having been submitted by plaintiff a judgment of non-suit was held error and reversed.</p>

<p>1. Municipal Coepoeations — Liability in Respect of Public Works Constructed by it Beyond th'e Corporate Limits. The city of Denver, acting under legislative authority, contributed money to aid in the construction of a public road extending beyond its limits, and its officials having authority in the premises sent employes to assist in such work. They were guilty of negligence, and damage ensued to one using such highway. The municipality was liable.</p> <p>2. Negligence — Public Highivay. An uncompleted bridge in the public highway is left without lights or guards in the night time, and by reason of these conditions an accident occurs to the traveler who is proceeding with due care. Those chargeable with the neglect are liable to the injured party.</p>

<p> Error to Denver District Court, Hon. A. Watson McHendrie, Judge. </p>

<p>1. Corporations — Levy on Stock. It is not contemplated by the statute that an officer shall determine the ownership of corporate shares, otherwise than by the books of the corporation.</p> <p>As to creditors no one is an owner of shares unless shown by the books to be such owner.</p> <p>A sale under execution against one person, of shares standing on the books of the corporation in the name of another, is without effect.</p> <p>Stock not transferred on the books may be reached by proper proceedings.</p> <p>2. -Rights of Pledgee. Plaintiff received in pledge from an Apartment Company, corporate stock standing on the books of the company in the name of a third person. Defendants having judgments against the apartment company levied upon the-shares, caused them to be sold by sheriff, and became the purchasers. Plaintiff, though he had never complied with the-statute as to the registration of the pledge (Rev. Stat., sec 870)i was allowed to maintain an action to vacate the sale to the defendants.</p>

<p>1. Execution Sale — Redemption. The entire property owned by different co-tenants must be redeemed.</p> <p>2. -Effect. The title remains in the debtor, until the execution of the conveyance pursuant to the sale.</p> <p>The first purchaser cannot defeat the right of a second judgment creditor to redeem, by payment of the second judgment.</p>

<p>1. Contract — Construed. Plaintiff holding contracts from certain parties residing in another state for the delivery by such nonresidents of a specified number of lambs, assigned it to defendant, in consideration of defendant’s written agreement to pay “a cent a pound on lambs that are delivered to me” by the parties contracting to make the delivery. In fact no lambs were ever delivered, nor were the parties to the original contract with plaintiff, able to make delivery. Held that no lambs having ever been delivered to the defendant, plaintiff was not entitled to an action against him.'</p> <p>2. Voluntary Payment — When May Be Recovered. Money voluntarily paid under no mistake of fact, and without fraud or imposition upon the one making the payment, cannot be recovered; e. g. where under a contract by which he is only conditionally liable the party with full knowledge of all the facts makes payments upon account of such contract, they cannot be recovered.</p>

<p>1. Assignment Without Recourse — Effect. A mortgage was assigned “with the notes therein described, without recourse in any event.” Held that though the defendant had previously endorsed the-notes, the endorsement and assignment being parts of one transaction, though of different dates, were to be construed together.</p> <p>2. Contracts — Construction. Writings of different date but parts of one transaction are to be taken together.</p> <p>Retaining the notes of the third party after agreeing to their application as payment amounts to an acceptance of them, as such, and to an acceptance of the parol agreement to apply them upon the debt.*</p>

<p> Error to Denver District Court, Hon. H. J. Hersey, Judge. </p>

<p> Error to Jefferson District Court, Hon. Harry S. Class, Judge. </p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p>Mandamus — Pleading. The petition for mandamus to compel payment of matured coupons of an irrigation district must show a previous demand upon the officers of the district.</p>

<p>Practice in Error — Finding Upon Sufficient Evidence, will not be disturbed.</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p>1. Practice in Error — Matter Not Pleaded, but treated by both parties as in issue will be considered in the court of review.</p> <p>2. Payment — Need Not Be in Money. Whatever is given and accepted as a discharge of liability is payment, e. g., an agreement at the time of the execution of a promissory note, to apply thereon the notes of another which the payee has before that obtained from the maker.</p> <p>3. Principal and Agent — Agent’s Authority. B. was employed by by plaintiff to settle or compromise a claim which he asserted against another. There being no limitation upon his authority it was assumed to authorize a stipulation for the application upon the promissory notes received in the settlement, as a payment, the notes, of another, before that received by the plaintiff from defendant. Retaining the notes of the third party, after agreeing to their application as payment, amounts to an acceptance, and the parol modification of the notes upon which they are to be applied.</p>

<p>Error to Huerfano District Court, Hon. A. F. Hollenbeck, Judge.</p>

<p> Error to Adorns County Court, Hon. W. C. Hood, Jr., Judge. </p>

<p>1. Criminal Law — Former Jeopardy, mast be specially pleaded. The question cannot be raised by a motion for an instructed verdict.</p> <p>2. Information — Irregularity—Waiver. Where the District Attor- ' nev presents an information as a substitute for one already pending, and the accused, without objection, pleads thereto, he waives all irregularity in- the proceeding and the question of prior jeopardy.</p> <p>2.---Affidavit. Where two offenses are charged in the information, supporting affidavit reciting “that the facts set forth in the foregoing information are true and that’ the offense therein charged was committed” held to cover both. Ausmus v. People, 47 Colo. 165, followed.</p>

<p>1. Judgment — Construed. An order entered by the Clerk can not nullify the judgment subsequently entered by the court.</p> <p>2. Prohibition — When the writ lies. Not when the error complained of may be reviewed upon error.</p>

<p>Judgment by Confession — Vacation. A judgment by confession under warrant of attorney must be vacated when the defendant, in apt time, by motion supported by affidavit, shows a meritorious defense.</p>

<p>1. Constitutional Law- — Construction of the Constitution. In construing any provision of the Constitution the presumption is in favor of the meaning- in which the words in question are usually understood.</p> <p>2. -Referendum, does, not extend to resolutions. In view of the precise words of sec. 1 of art. V, of the Constitution by which the referendum is extended to any act, or part of an act; that the petition shall be filed within a specified period from the adjournment of the session' of the General Assembly that passed the bill on which referendum is demanded, and that the filing of a referendum petition against any act, or part of any act shall not delay the remainder -of the act from becoming operative, held that the referendum is not granted to a mere resolution; e. g., amendment proposed by Congress to the Federal Constitution.</p> <p>Herbering v. Brown (Ore.), 180 Pac. 328; in re Opinions of Justices (Maine), 107 Atlantic 673, followed.</p> <p>The “Legislature.” as used in Article 5 of the Federal Constitution, means the body composing the ordinary law-making body of the state.</p> <p>The people have no power to ratify amendments proposed to the Federal Constitution, and therefore cannot exercise the referendum upon such resolution adopted by the Legislature.</p>

<p> Error to Denver District Court, Hon. Henry J. Hersey, Judge. </p>

<p>1. Attorney’s Lien — Properties Received by the Attorney in Trust. Plaintiffs, a firm of attorneys, contracted with the defendant, Clark, to prosecute his claim for 700,000 shares in the capital of a certain corporation and prevailed in the action. One of the attorneys afterwards received the certificates representing the shares, “on behalf of” the client, and transmitted them to a trust company in an eastern city, which held them by agreement as trustee for the client, as to a portion of the shares, and as to the residue as trustees for others who had advanced money to consummate the purchase. The attorneys claimed a lien only upon the share of the client. Held there was no room for the application of the rule which denies the attorney a lien upon properties held for a special purpose, adverse to the lien.</p> <p>2. --Notice of the Lien. An agreement by the client with others who provided the money required to complete the purchase of the shares, that the certificate should be deposited with a certain trust company, for the benefit of the client and these contributors, and the actual transfer of the certificates to the trust company, with notice of the lien upon the interest “of the client, was held not to defeat or impair the lien.</p> <p>The notice required by the statute is not a prerequisite to the validity of the lien.</p> <p>3. ——Properties Held by Another, as trustee for the client, but which are the result of the attorney’s services, are subject to the lien.</p> <p>4. Corporate Stock — Situs of, is the state where the corporation was created.</p>

<p>Practice in Error — Findings on Conflicting Evidence, will not be disturbed.</p>

<p>Evidence — Burden of Proof. The burden of proof is upon defendant to establish his affirmative defense contentions by a fair preponderance of the evidence.</p>

<p>1. Master and Servant — Course of Employment. Where the servant loses his life in an attempt to save a fellow servant from injury, he is acting within the course of his employment.</p> <p>2, Industrial Commission — Finding of, if supported by the evidence must be accepted by the courts.</p>

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

<p> Error to Las Animas District Court, Hon. A. C. McChesney, Judge. </p> <p>Mr. Jesse E. Northcutt, for plaintiff in error.</p>

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

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

<p> Error to Jefferson District Court, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Rules op the Road — Cities. The rules of the Road in Cities require every vehicle to travel on the right hand side.</p> <p>2. Auto 'Cars — Duty of driver at street intersection. It is the duty of every1 driver of an auto car, when approaching a street intersection, to use reasonable care to see whether there is likelihood of a collision with a car approaching from the right, and if there is, to yield to it the right of way, and to keep his car under such control that he can do so.</p> <p>The one having the right of way is not absolved from reasonable care, and the driver not having the right of way is entitled to assume that the car approaching from the right is not driving at a negligent rate.</p> <p>3. Evidence — Judicial notice taken, that in ordinary prudent driving it is impossible for an auto car to stop in its own length.</p>

<p>Landlord and Tenant — Surrender. A lease provided that the tenant might assign to a corporation of which he was a 'member. The purpose of the transaction was to secure the premises for a corporation to be afterwards organized, the nominal lessee having no interest. The corporation was organized and the tenant, without assuming possession, immediately assigned to it, and the corporation occupied) the premises and for a time paid rent.</p> <p>Held sufficient to justify the court below in declaring that there was a surrender by the lessee, and an acceptance of a new tenant by the lessor.</p> <p>The question whether there was a surrender, and a release of the original lessee held one of fact.</p>

<p>1. Employment Agency, furnishing technically trained employes, is not subject to police regulation as are those supplying common labor. Wilson v. Denver, 176 Pac. 17 followed.</p> <p>2. ——License Tax. A city may impose a license tax upon such agency, in spite of the imposition of a like tax by the state. Provident Loan Society v. Denver, 172 Pac. 10 followed.</p> <p>3. -Interstate Business. A society which furnishes such employes to those without the state is not entitled to the protection of the statutes regulating interstate commerce where this is not its exclusive business.</p>

<p>1. Pleadings — Sham Plea, is one which is good in form but false in fact.</p> <p>2. -Motion to Strike, as sham, should be granted only on the most careful consideration.</p> <p>The motion should precede a demurrer.</p> <p>3. Practice in Error — Presumptions. Where a reply is held sham, upon evidence not presented in the record, the court of review must presume such evidence sufficient.</p>

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

<p>Escrow — Conditions construed. Certain promissory notes and other papers were deposited with defendant, with written instructions to the effect that if parties named should demand the paper by a day designated, the bank should surrender them. No such demand was made. The bank was justified in delivering the notes to the payees named therein.</p>

<p>1. Pleading — Want of consideration. Where defendant, in an action upon contract, would plead want of consideration he must set up the facts from which this conclusion is to be drawn, so as to advise the plaintiff what he will be called upon to meet by way of evidence. Welles v. Colorado Company 49 Colo. 508 followed.</p> <p>2. -Plea construed. Action by physician upon a promissory note bearing the signature of defendant. Plea that “if ever signed by defendant it was when defendant was in such feeble mental conditión that he was unaware of what he was doing, and such note was based on no consideration.”</p> <p>Held that plaintiff was not thereby advised that defendant would prove an agreement that a sum paid by defendant should cover all treatments past and future, nor that plaintiff’s services were given gratuitously, nor that defendant would deny the consideration; that the plea offered no issue.</p> <p>3. Practice in Error — Submitting to the jury a question upon which there is no evidence, is error.</p>

<p>1. Municipal Corporations — Powers. A town has no authority to condemn for' sewer purposes private land situate without its limits.</p> <p>Nor to pollute a public stream with sewage.</p> <p>2. Eminent Domain — What May Be Taken. Neither public waters nor the bed or channels of public streams.</p>

<p>1. Judgment — Presumptions. An order of the County Court reciting that a claim presented against an intestate estate was “a certified copy of a judgment heretofore entered against said deceased”, must be taken as true, and shows compliance with the statute.</p> <p>2. Appeal — County to District Court. An appeal lies to the District Court from an order of the County Court setting aside the previous allowance of a claim against a decedent’s estate.</p> <p>3. Notice — Evidence. The papers and files of a cause determined, in the District Court on appeal were returned to the County Court five days before the estate was declared insolvent and closed. Held that.one with whom the executors and heirs had stipulated for such declaration of insolvency, etc., was in no position to alleg-e ignorance of the judgment of the District Court.</p> <p>4. Limitations — Judgment. Plaintiff obtained judgment in 1894 against one afterwards deceased. The allowance thereof against the estate in 1911 was a new judgment, to which the twenty-year limitation (Rev. Stat., sec. 7211) was no plea.</p> <p>A claim filed against a decedent’s estate within eight months after the granting of letters of administration, is within the time limited by the statute of non-claim.</p> <p>5. Equity — Laches. A delay of six months in the institution of an action to unravel the fraudulent closing of a decedent’s estate, was held, under the circumstances of the case, not laches.</p> <p>6. Administrator — Duty and Liabilities. An administrator is trustee for all the creditors of the estate and-it is his duty if possible, to redeem the estate from hostile holdings or sell it for an amount which will pay every creditor, in whole or in part.</p> <p>An administrator who, for his own gain, assumes a position in hostility to a creditor, and ararnges that his own claims as heir at law shall take precedence of the claim- of the creditor commits a fraud.</p> <p>7. Party to Fraud — To Liability. One who enters into a contract with an administrator by which the administrator is disabled from performing his duty to a creditor of the estate will not be heard to say what the administrator might have or might not have done, but for his unlawful conduct.</p> <p>8. Practice in Error — Judgment. Defendant had entered into a fraudulent scheme with the administrator of an intestate estate, the effect of which was to exclude the claim of the plaintiff against said estate. Valuable premises pertaining to the estate had been sold to satisfy a mortgage, and defendant purchased the certificate of purchase. Judgment for defendant was reversed with directions to the court below to enter judgment for the plaintiff, declaring his judgment to be a lien on the premises in question as of the date of the sheriff’s deed, but subject to the amount of the certificate of purchase, without interest.</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p> Error to Denver District Court, Hon. A. Watson McHendrie, Judge. </p>

<p>Judgment affirmed on the authority of Denver v. Frueauff, 39 Colo. 20.</p> <p> Error to Denver County Court, Hon. Ira C. Rothgerber, Judge. </p>

<p>1. Municipal Corporations — Powers. A city having express authorority to operate works of public utility, e. g., for supplying water, light, steam, electric power or the like, acts in a proprietary or business capacity and may lawfully sell any surplus of that which it produces.</p> <p>And may at public expense construct the appliances necessary to convey such surplus to the place where there is a demand for it, even though to points without the municipal limits.</p> <p>2. -Contract construed. The county applied to the city council for permission to connect with the city water-works, a pipe line without the city limits, to convey water to the non-residents of the city, agreeing that those using water therefrom should pay therefor, “at the schedule rates now or hereafter adopted”.; that the costs of the connection, and the extension, should be paid by the county, and that “Whenever the service of said extension shall pay to the city an amount equal per annum to 20 per cent, of of the cost thereof “the line should be conveyed to the city, and the costs of construction, “according to prices then prevailing”, should be paid to the county. This petition was allowed and the line constructed and operated' for a series of years. Action for the cost of construction under the last clause of the contract. Held a valid contract, not ultra vires and that the city was liable.</p> <p>3. -Prior appropriation. There being no certainty that any expense would ever be incurred by the city, and no indebtedness created within the year in which the contract was made, Held that sec. 6633, Rev. Stat. was inapplicable and not controlling.</p> <p>4. --Public works. The improvement was not a public work constructed by the city and it was not required that the work would be let to the lowést bidder.</p>

<p>1. Pleading — Answer filed after time, is not to be stricken out.</p> <p>2. ■ — -Irrelevant matter. Plaintiff whose motion to. strike the answer has been denied, is, under the statute, entitled to have stricken therefrom matter not properly belonging therein, and if this is denied him he is entitled to reply.</p> <p>3. Averment — Conclusions drawn from pleadings. Action upon contract. Plea that the contract “as shown by the pleadings”, was not to be performed within one year, Held not a statement of fact and not admitted by failure to deny it in the reply.</p> <p>4. Damages — Violation of contract. One who being entitled to employment for a time certain, under a contract, is denied such employment, may recover any diminution in what his income would have been if allowed to serve under the contract, even though he received other compensated employment for the period of his contract.</p> <p>In any event he is entitled to nominal damages.</p>

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

<p> Error to Denver District Court, Hon. Clarence J. Morley, Judge. </p>

<p>Bankruptcy — Construction of Statute. The provisions of the Bankruptcy Act concerning- the discharge of the bankrupt from his liabilities are to be strictly construed. The bankrupt who fails to use due diligence to ascertain the residence of a creditor, and so fails to give his residence in his schedule is not discharged of the debt.</p>

<p>1. Tort — Damage—Non-suit. One complaining of a tort and failing to show any damage therefrom is properly non-suited.</p> <p>2. Damages — Measure of, in an action for the destruction of a growing crop, is the value of the crop at the time and place of the injury.</p> <p>The evidence examined and held insufficient to establish the damages occasioned by the tort complained of.</p> <p>3. Evidence — Expert Testimony. One called to give an opinion as to the value of property must be shown to have had means to form an intelligent opinion upon the matter.</p> <p>Whether a witness offered for such purpose shall be permitted to give his opinion is largely within the discretion of the Court.</p>

<p>Error to Fremont District Court, Hon. James L. Cooper, Judge.</p>

<p>Contract — Construed. An attorney was employed by the drainage District, “until its final completion.” Held, to import the organization and establishment of the district, as a legal entity, and not the completion of the drainage works contemplated.</p>

<p>1. Practice in Error — Defects in Bill of Exceptions, Abstract and Assignment of Error, precluding an intelligent examination of the contentions of plaintiff in error, the judgment was affirmed.</p> <p>The rules of court and many cases decided in this court and the Court of Appeals, upon questions of practice, cited.</p>

<p>Plaintiff having ridden into an excavation made by another than defendant has no action against defendant. The contention that a fence erected by defendant around a building in course of construction had produced or contributed to plaintiff’s injury was rejected upon the ground that the fence was lawfully constructed and was maintained only for a reasonable time.</p>

<p>Bill op Sale — Intended to operate as a will. Plaintiff was demanding certain articles of jewelry and other properties, formerly the property of a Mrs. Bristow, and upon deposit in the bank. She was opposed by the administrator of Mrs. Bristow’s estate. It appeared that this lady, being in difference with her husband, consulted an attorney as to a will which she had executed in favor of plaintiff, and was advised that she could not lawfully devise away from her husband more than one-half of her property. Shortly thereafter Mrs. Bristow executed a bill of sale conveying to plaintiff all her personal effects, and the same day plaintiff executed a like bill of sale to Mrs. Bristow. The safety deposit box in which all the properties in question were deposited was rented in the name of the two ladies. From these and other circumstances held that the court below was correct in its conclusion that the purpose of the two ladies was to vest in the survivor of them the properties of the other, and in effect created neither a sale nor a gift.</p>

<p> Error to Douglas County Court, Hon. John Anderson, Judge. </p>

<p>Contract — Construed. Contract for the planting and cultivation of beans by plaintiff, and the subsequent delivery of the product to defendant. Below the signature to the writing evidencing this agreement was a memorandum in writing in these words, “Guarantee prices as much as any other house.” Plaintiff having delivered the beans raised by him and been paid! therefor the price specified in the contract, sued for an additional per cent on the ground that another house had paid for beans a price in excess of that paid for plaintiff, and that the clause quoted entitled him to such excess. Held that the memorandum relied upon .by plaintiff was expressly excluded from the contract by the final provision thereof that “there are no agreements or understandings other than those expressed above.”</p>

<p>1. Practice in error — Findings supported by competent testimony, ■will not be disturbed.</p> <p>2. Reformation or rescission — Election. Where facts justify either reformation or rescission party must elect and abidé such election.</p>

<p> Error to Denver District Court, Hon. Clarence J. Morley, Judge. </p>

<p> Erf or to Bent District Court, Hon. A. F. Hollenbeck, Judge. </p>

<p>1. Corporations — Failure to file annual report — Complaint of creditor, failing to show whether no report was filed, or whether that filed did not with sufficient detail set out the particulars required by the statute, is insufficient in law.</p> <p>2. False Report — -In due form, is sufficient to protect the directors from liability under c. 102 of the Acts of 1911.</p> <p>The directors responsible for a false report are liable under Rev. Stat. sec. 876.</p>

<p>1. Want op Jurisdiction, as a Defense, when it depends on a question of fact, must be pleaded affirmatively.</p> <p>2. Former Judgment — As a Defeme — Must ahoays be pleaded. Petition for prohibition to restrain the County Court from entertaining the petition of a divorced wife for custody of the children. The contention of the respondent husband was, that in habeas corpus proceedings in the District Court, the children had upon the same facts been awarded to him. But no answer pleading the judgment of the District Court had been filed. The petition was dismissed.</p>

<p>1. Constitutional Law — The Recall of Officers — School Director. Section 1 of Article 21 of the Constitution (Laws 1913, p. 672) applies only to elected public officers of the state. City, county and town.officers may be recalled under section 4 of the Act.</p> <p>2. School Directors — Duties, are performed in and relate exclusively to their own districts, respectively. That they act under the laws of the state does not constitute them officers of the state.</p> <p>3. Statutes — Construction. A particular power given in clear and definite words should have effect, as against general and confusing expressions, especially, when to adopt the other interpretation would render the clear and definite provision mere surplusage.</p>

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

<p> Error to Jefferson District Court, Hon. S. W. Johnson, Judge. </p>

<p>Fraud — False Representation. One offering farm land for sale, represented to a proposed purchaser that a certain irrigating district had a feasible project, and would be dble to apply water to the latter. Held not a false statement of any fact past, present, or to come, and affording no ground to vacate the purchase.</p>

<p>1. Water Rights — Abandonment. The mere expressed intention to abandon a right in water is without effect to deprive the owner so expressing himself.</p> <p>2. -Seepage, escaping from a reservoir is part of the stream from which it was diverted. It is regarded as already appropriated by those having adjudged priorities and is not subject to appriation.</p> <p>3. In Ironstone Ditch Company v. Ashenfelter, 57 Colo. 31, the only question for decision was whether the proposed change would injuriously affect vested rights to the use of water from a particular stream. Expressions of the opinion upon other questions declared dicta,.</p> <p>4. Adjudication of Priorities — Decree. Doubted whether a decree for direct irrigation can be granted in a proceeding to secure storage rights.</p> <p>5. -Discriminations — Relief. The court below having denied the benefit of the doctrine of relation as to plaintiffs in error, who were shown to be entitled to it, the decree was reversed with specific directions to the court below to allow the several appropriations claimed by plaintiff, and the date and volume of each.</p> <p>As to the affirmance of the decree disallowing a decree for direct irrigation, Garrigues, C. J., and Burke and Denison, J. J., dissent.</p>

<p>1. Equity — Laches. The failure to prosecute diligently a suit seasonably begun is laches. Especially where during the delay the property has greatly increased in value.</p> <p>Improvements made by defendant during the delay afford an additional reason to deny the relief demanded.</p> <p>2. Practice in Error — Judgment. The party successful below appearing by the record not entitled to any relief, the judgment was reversed and the lower court directed to dismiss the action.</p>

<p> Error to Weld District Court, Hon. George H. Bradfield, Judge. </p>

<p>1. Workman’s Compensation — Disobedience of Orders or Rules— Effect. The transgression of an order or prohibition which deals only with the workman’s conduct within the sphere of his employment will not prevent the recovery of compensation.</p> <p>Otherwise where the workman disobeys a rule or order which limits the sphere of employment.</p> <p>The workman was directed not to work under an overhanging bank without first caving it down. Held the order was one only dealing with the workman’s conduct within the sphere of his employment.</p> <p>2. -Violation of a Rule Prescribed for the Workman’s Safety, has the effect to reduce the compensation 50 per cent.</p> <p>3. -Casual Employment. That the servant is not employed for any specified time does not render his employment casual under sec. 4 (d) II of the Workmen’s Compensation Act (Laws 1915, c. 179).</p> <p>A workman mining silica for use in the manufacture of brick at the works of his employer, and working with regularity. Held not a casual employee.</p> <p>So that the injury occurs shortly after the employee begins work.</p> <p>4. -Number of Employees — Statute Construed. That less than four men are employed in extracting silica for use in a brick yard conducted by their employer, where there are many employes, does not bring the case within sec. 4 (d) III of the act.</p> <p>The manufacture and procuring the material for it constitute but one business.</p>

<p>1. Police Power — Unreasonable Order, made by a Public Commission is void.</p> <p>2. -Presumption. Orders of a railway commission are presumptively reasonable and will not be overturned unless the contrary clearly appears.</p> <p>3. -Order to Railway Company to Establish a New Station, sustained.</p> <p>That the railway was subject to federal control under the act of March 21, 1918, was held, in view of sec. 15 of the act, and a general order of the Director General of Railways, not to invalidate the order.</p> <p>An order of a federal official limiting the expense of any improvement, Held not to refer to expenditures made under police regulations of the state.</p>

<p>1. Practice in Error — Harmless Error. Complaint containing two causes of action alleged to be inconsistent. Demurrer for misjoinder, and motion to compel an election denied; but the court limited plaintiff’s recovery to what was demanded in one of the counts. Held to render the error harmless.</p> <p>A decree appropriate to a suit in equity after judgment at law was held no reason to remand the cause.</p> <p>2. Equity — Rescission of Contract — Return of Things Purchased. Machinery purchased by plaintiff in reliance' upon false representations of defendant. Offer to return refused. In fact the machinery was under chattel mortgage executed by plaintiff, at the time of the refusal, but was not assigned as the ground of the refusal by the defendant. A release of the mortgage produced at the trial was held to render harmless any rulings of the court as to the effect of the mortgage.</p>

<p> Error to Denver District Court, Hon. Jtilian H. Moore, Judge. </p>

<p>1. Quo Warranto — By Private Relator. Under license from the city the defendant had, at great expense, constructed a line of telephone occupying with its structures the public streets. The city had accepted and was still accepting valuable services from defendant, and had taken no step to revoke the license. Held that a private citizen was not entitled to quo warranto to oust defendant of the franchise, especially as the municipality had the power of revocation, and the like power was vested in the inhabitants through the initiative.</p> <p>2. Supreme Court — Quorum. A majority of the judges constitute the quorum of the court.</p> <p>S. -Majority of the Quorum. The judges constituting a majority of the quorum may speak for the court in the decision of any case.</p> <p>On the first question Garrigues, C. J., and Burke, J., concur, Allen, J. and Denison J. not sitting.</p> <p>On the last question Garrigues, C. J., and Allen, Burke and Denison, J. J., concur; Scott and Teller, J. J., dissenting on both propositions.</p>

<p>Assignment — Second Assignment, of what has already been assigned passes nothing.</p>

<p>1. Pleading — Admissions by, cannot be contradicted.</p> <p>2. Payment — Plea of, admits the original liability, and the defendant is estopped to deny it unless fraud, duress, or the like be shown.</p> <p>3. Practice in Error — Harmless Error. The. exclusion of evidence which is made immaterial by what appears in the record is harmless.</p> <p>4. Fraud — Contributing to. One whose negligence enables his agent to practice fraud upon another must answer for the injury.</p> <p>5. New Trial — Newly Discovered Evidence, merely cumulative is no ground for a new trial.</p>

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

<p>1. Statute op Frauds — Part performance of an oral contract for the sale of lands is a defense to an act impeaching such contract only where it appears that the act relied upon as part performance was at the time known to the other party in interest.</p> <p>2. -Idem. The act relied upon as part performance must be something required by the contract. Doing something because of, or in reliance upon the contract, is not enough.</p> <p>Taking possession of lands under a verbal lease for years, and payment of rent do not amount to part performance. ■The act relied upon must be consistent with no other theory than the validity of the alleged contract.</p>

<p>1. Statute of Frauds — Contract for 'the Carriage of Water. A verb- • al contract by the proprietors oí an irrigating- ditch to carry the waters of another ditch is not within the statute of frauds. Yunker v. Nichols, 1 Colo. 551, followed.</p> <p>2. -Part Performance. Verbal contract to carry water for 99 years was completely observed by the parties during the first irrigation season. Held it could not be said that the contract was only partly performed, in the ordinary sense.</p>

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

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

<p>Reversed on authority of Denver v. Frueauff, 39 Colo. 20.</p> <p> Error to Denver District Court, Hon. Francis E. Bouck, Judge. </p>

<p>Bill of Review — Leave to File, is not necessary where it is merely sought to correct an error of law apparent on the face of the record; otherwise where newly discovered evidence is relied upon. Where both error in law and new matter are asserted, leave must be obtained. Error appearing only by reference to some public office does not entitle the party complaining to file his bill without leave.</p>

<p>1. Accident . Insurance — Construction of Policy. The policy requiring a cash deposit on a day named, and the payment of a premium at a later date, and providing that if any deposit was not made, or any premium not paid, within ten days of its maturity, the policy ipso facto lapsed. Held that both the deposit, and the payment of the premium were required, to the continuance of the policy.</p> <p>2. PAYMENT' — Check Accepted by Mistake. An accident insurance company made it a practice not to accept a delinquent check until examination made as to whether the insured had sustained an .accident after his default. A-clerk of the company by mistake sent the cheek to the bank for deposit, on the day of its receipt. This was on Saturday, and upon the following Monday the company withdrew the check, and the amount thereof was charged against it by the bank. The check was returned to the person from whom it came. Held that the mistake of the clerk did not charge the company.</p> <p>3. Waiver op Defenses — An Act Done in Ignorance, of the existence of facts which warrant the defense effects no waiver.</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p>1. Executor — Authority Before Probate. Even before probate ofHhe will the executor may employ an attorney to aid in securing moneys pertaining to the estate. Secs. 7103, 7138 of the Revised Statutes do not support a contrary resolution.</p> <p>2. ——Employment of Attorney. The executor may employ' counsel to aid in the preservation of a private corporation in which the estate is largely interested.'</p> <p>The attorney’s bill was reduced from $17,000 allowed by the district court to $10,000.</p>

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

<p>Error to Denver District Court, Hon. Clarence J. Morley, Judge.</p> <p> Application for Supersedeas. </p>

<p>1. Corporation — Annual Report. A report containing* no statement of any indebtedness as owed by the corporation was filed on February 28. Held not a compliance with the statute-</p> <p>The report should be filed within reasonable time after its preparation, the time depending upon the circumstances of each case.</p> <p>2. -Former Default, by a corporation in filing an annual report, is no bar to the creditor’s action against a director, counting upon a later default.</p>

<p>1. Judges — Order Without Notice. An order made without notice, calling another judge to preside at a trial, if it be regarded as under code see. 31 concerning change of venue, is without effect, even though made on the court’s own motion,</p> <p>2. Calling Another Judge. An order inviting the assistance of another judge under sec. 1478 R. S. 1908, is revocable at anytime before the invited judge takes charge.</p>

<p>1. Real Estate Brokers — Commission. A broker employed to procure a purchaser for real estate earns his commission when, | through his efforts, a purchaser meets the employer and a salé is made to him.</p> <p>2. Trial — Remarks of the Court. Informal and desultory remarks of a judge at the close of argument are not findings of fact properly so called, and have not the force of a special verdict.</p> <p>3. Appeal and Error — Judgment. A judgment will not be disturbed by the appellate court, if there is evidence to justify it.</p> <p>Remarks of the Court — Bill of Exceptions. Informal remarks of the court made in passing judgment, are not made findings by so denominating them in a bill of exceptions.</p>

<p> Error to the District Court of Pitkin County, Hon. John T. Shumate, Judge. </p>

<p> Error to the District Court of Pitkin County, Hon. John T. Shumate, Judge. </p>

<p>1. Schools — Poivers of Board of Directors. May exclude pupils who do not meet reasonable health requirements; may take expert advice as to what these requirements should be; may employ suitable persons to make inspections and give advice as to physical condition and training.</p> <p>But physical examinations should not include medical or surgical treatment.</p> <p>2. Statutes — Construed. Section 5926, R. S. 1908, providing for the employment of “teachers, mechanics and laborers” does not restrict a school board to the employment of such persons .only.</p> <p>3. Statutes — Construed■ Chapter 203, S. L. 1909, providing for the yearly inspection of pupils by inexpert principals and teachers, does not forbid adequate inspection by experts and was not intended as a complete system to supersede the board's power ' to protect and physically educate children. ,</p>

<p>1. Corporations — Discharge of Receiver. A judgment creditor is entitled .to the discharge of the receiver of a debtor corporation where it appears that at the time of the institution of the receivership proceedings, the company was solvent and conditions were such that the appointment of a receiver was unwarranted.</p> <p>2. Receivers — Discharge—-Estoppel. Creditor of a corporation is not estopped from asking for the discharge of a receiver of the company, where he recognizes. the receivership by moving for an order requiring the filing of an inventory and applying for a transfer of unincumbered personal property, where it appears that he did not have full knowledge of the facts and conditions and the circumstances were not such as to conclusively impute 'to him such knowledge.</p> <p>3. Appeal and Error — Refusal to Discharge Receiver Final Order, When. Ordinarily the overruling of a motion to discharge a receiver is interlocutory and not appealable, but the rule depends on circumstances. Where the petitioner was a judgment creditor, clearly entitled to the relief asked, and the denial of his petition in effect precluded him from collecting his judgment, the order of denial was held, as to him, final and appeal-able.</p>

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

<p>1. Words and Phrases — “Proceeds.” The word must be -interpreted from the context of the writing in which it is used, and the circumstances of the case.</p> <p>2. Contracts — Construed. “Proceeds”, in a contract providing “on the basis of 60 per cent net to the treasury of your company of all stock sales,” construed to mean money paid for stock.</p> <p>3. Recovery under. But a broker under such a contract, where he is to receive 40 per cent of the “proceeds”, is not prevented from recovering for the value of his services, if any, for the sale of stock issued in payment for property or services.</p> <p>4. Debtor and Creditor — Indebtedness. A creditor can not lawfully pay himself with a debtor’s money without the debtor’s consent and when a debtor delivers him money for a purpose which negatives the idea of payment, the creditor’s control is limited to the purpose declared.</p> <p>5. Corporations — Transfer of Stock. Officers of corporations in transferring shares of stock and issuing certificates, act in a ministerial capacity.</p> <p>Indebtedness to. Officers cannot appropriate the shares of a stockholder of record, who chances to be indebted to the corporation; they can reach his interest only by statutory proceedings, and a refusal to transfer the shares at the request of the stockholder has been held a conversion.</p> <p>6. Damages- A stockholder in a corporation is entitled to at least nominal damages for the refusal of the officers to transfer his stock as requested.</p>

<p>1. Pleading — Motion to Strike. Good pleading prohibits the anticipation in a complaint of matter of defense, and such matter should be stricken.</p> <p>2. Appeal and Eeeoe — Irrelevant Evidence. The admission of evidence, in support of irrelevant allegations in a complaint, which is prejudicial to defendants, constitutes reversible error.</p> <p>3. Pleading — Immaterial Allegations. There is no good excuse for confusing an issue and encumbering a record with irrelevant allegations. Trial courts, while they have a large discretion in determining motions to strike, should give to pleadings such consideration as is necessary to insure the presenting of only those facts which are pertinent to the cause of action.</p>

<p> Writ of Review to The Public Utilities Commission. </p>

<p>1. Utilities Commission. Order of the Commission held Invalid for the reasons stated in Golden Cycle Co. v. Light Co., No. 9416.</p>

<p>1. Appeal and Error — Election—Harmless Error. The jury returned a verdict on each of two counts pleaded, one upon an account stated, the other on quantum meruit; judgment on one count only.- Held, that the refusal of the court to compel an election, if error, was not prejudicial.</p> <p>:2. Findings of a Jury on Conflicting Evidence will not be disturbed by the appellate court.</p> <p>'3. Pleadings. Accord and Satisfaction must be pleaded if evidence is to be introduced to support the plea.</p> <p>■4. Appeal and Error — Correct Judgment. Where the judgment rendered is manifestly correct, no objection which does not go to the very right of the matter should be permitted to prevent a recovery.</p>

<p>1. Judges — Not Personally Liable for Damages for Error in Judgment. Action for damages against a county judge and others for conspiracy to bring about the arrest and copviction of plaintiff for the violation of a city ordinance concerning the licensing of dogs. Held, that when it appeared by the complaint that defendant was charged with personal liability for error in judgment while acting as judge, the case was properly dismissed.</p>

<p> Error to the District Court of Conejos County, Hon. Jesse C. Wiley, Judge. </p>