Volume 69 — Colorado Reports

Action in damages against a street railway corporation for personal injuries. Judgment for plaintiff. On Petition for Rehearing. Error to the District Court of El Paso County, Hon. W. S. Morris, Judge.

Action for damages alleged to have been caused by negligence of the city in permitting plaintiff’s property to be flooded with water. Judgment for defendant. Error to the District Court of the City and 'County of Denver, Hon. George W. Allen, Judge.

<p>1. Appeal — Statutory Constmetion. Statutes giving the right of appeal are liberally construed in furtherance of justice. Interpretation that will work a forfeiture of the right is not favored.</p> <p>2. From County to District Court — Clerk’s Docket Fee. Under sec. 1538, R. S. 1908, a case may be docketed on appeal without payment of clerk’s fees in advance if the clerk shall waive advance payment or agree to accept it at some future time.</p> <p>Sec. 2528 R. S. 1908, providing for the payment of clerk’s fees in advance, is permissive only and not mandatory.</p> <p>3. Replevin — Verdict—Judgment. In a replevin action where the verdict is primarily for possession of the property in suit, judgment should be for possession of the property, and for the value thereof only in the event that recovery of the specific property may not be had.</p>

<p>On motion of defendant in error to reinstate the cause on cross-assignments.</p>

<p>1. Damages — Pleading. Alleged damages for the loss of the use of a pleasure automobile, being special in character, must be pleaded.</p> <p>2. Negligence — Proof—Instructions. When reliance is placed on particulár acts of negligence, the proofs must be confined to those acts and the jury must be limited to a consideration of the specific acts charged.</p>

<p> On Application for Supersedeas. </p> <p> Error to the District Court of Delta County, Hon. Thomas J. Black, Judge. </p>

<p>Motion in district court to dismiss appeal from county court for alleged failure to file appeal bond in time. Motion sustained.</p> <p> Error to the District Court of Douglas County, Hon. J. W. Sheaf or, Judge. </p>

<p>1. Iekigation — Ditch right of way. Where a ditch owner is permitted without interference to construct a ditch over the land of another and the ditch is put in use, a right of way is thereby acquired and the necessity for condemning to obtain possession is obviated.</p>

<p>Action by beneficiary named in a fraternal benefit society certificate to recover upon the death of the insured. Judgment for plaintiff was reversed by the court of appeals, which was reversed by the supreme court and the judgment of the district court,</p> <p> Error to the Court of Appeals. </p>

<p>Action for contribution by surety against co-surety on a promissory note. Judgment for defendant.</p> <p> Error to the District Court of La Plata County, Hon. W. N. Searcy, Judge. </p>

Action to recover balance due on promissory note after application of amount received from sale of chattel security. Judgment for defendant. Error to the District Court of La Plata County, Hon. W. N. Searcy, Judge.

<p>1. Appeal and Error — Equity—Special Verdict. Assignments of error based upon contradictory answers in a special verdict returned in a chancery case, are without merit, aá the trial judge in his capacity as a chancellor, is the real arbiter of the cause.</p> <p>2. Contract — Rescission. In the absence of fraud, courts will not ' relieve parties from the effects of their speculative ventures or hasty and ill-considered agreements.</p>

<p>Defendant was convicted for a violation of the non-support act.</p> <p> Error to the Juvenile Court, City and County of Denver, Hon. Ben B. Lindsey, Judge. </p>

<p>1. Malicious Peosecution — Malice. In a case of malicious prosecution, malice is an essential element of the cause of action, and a finding of the jury that defendants were not actuated by-malice is decisive of the case.</p>

<p>Action against a railroad company for personal injuries. Judgment for plaintiff.</p> <p> Error to the District Court of San Juan County, Hon. W. N. Searcy, Judge. </p>

<p>Action to cancel deed of trust. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. H. S. Class, Judge. </p>

<p>Under’ an information charging homicide, plaintiff was convicted of murder in the first degree.</p> <p> Error to the District Court of Larimer County, Hon. Neil F. Graham, Judge. </p>

<p> Original Proceeding in Mandamus. </p> <p> Alternative writ made absolute. </p>

<p>Action to restrain trustees of school of mines from' carrying out a contract relative to the employment of a president for the school. Complaint dismissed.</p> <p>Error to the District Court of the City; and County of Denver, Hon. James L. Cooper, Judge.</p>

<p>Information charging plaintiff in error with contempt of court by circulating a petition to recall a district judge. Judgment of guilty.</p> <p> Error to the District Court of Las Animas County, Hon. Robert G. Strong, Judge. </p>

Action to recover for services rendered in connection with farm cropping contract. Judgment for plaintiffs. Error to the District Court of La Plata County, Hon. W. N: Searcy, Judge.

<p>1. Real Estate Brokebs — Contract ty,. to convey title. A contract with a real estate broker to sell, confers upon bim authority to produce a purchaser able, ready and willing to buy upon terms fixed by the owner, but gives bim no power to bind or convey title unless there is a specific written agreement to that effect.</p>

<p>Action to foreclose mechanics’ lien. Judgment for plaintiffs.</p> <p> Error to the District Court of Pueblo County, Hon. J. E. Riser, Judge. </p>

<p>1. Contract — Rescission—Burden of proof. One party to an executory contract, in tbe absence of fraud or special reason, can not rescind. To rescind by agreement, tbe agreement must be mutual and by all tbe necessary parties to tbe original contract. Tbe burden of proving tbe agreement is upon tbe party alleging it.</p> <p>2. Contract of Bale — Essentials. Tbe necessary essentials of a valid contract of sale of cattle are: 1. Certainty as to parties; 2. . Sufficient certainty as to property; 3. Price; 4. Time, place and manner of payment; 5. Time and place of delivery, if delivery be agreed upon.</p> <p>3. Instructions — Issues. Instructions should confine tbe issues to tbe facts in tbe case, and should not contain conclusions or assumptions not warranted by tbe evidence.</p>

<p>Action on judgment of a foreign state, Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. John A. Perry, Judge. </p>

Criminal action for assault with intent to commit a bodily injury with an automobile. Directed verdict of not guilty. Error to the District Court of the City and County of Denver, Hon. William D. Wright, Judge.

<p>Plaintiff in error was convicted of violating the prohibition act of 1915.</p> <p> Error to the District Court of Las Animas County, Hon. Granby Hillyer, Judge. </p>

Action involving objections and protest to the admission , of a will to probate, as to a bequest to the city of Denver. Objections and protest overruled. Error to the County Court of the City and County of Denver, Hon. Ira C. Rothgerber, Judge.

<p>1. Adjudicated Cases. .Judgments affirmed on authority of Bowman v. Atchison, Topelca & Santa Fe Railway Oo., 61 Colo. 477.</p>

Action by employe to recover under the workmen’s compensation act, for injuries sustained while on.his way to work. Judgment for claimant. Error to the District Court of the City and County of Denver, Hon. John H. Denison, Judge.

<p>1. Appeal and Error. — Criminal Law — Confession of Error l>y Attorney General. Where the prosecution, acting through the Attorney General, confesses error and asks for a reversal of the judgment, it is not incumbent upon the appellate court to investigate the record and determine the correctness of his conclusions.</p>

Action by claimants under a trustee’s deed, to enjoin the execution of a sheriff’s deed to the same property under a mechanic’s lien decree. Judgment for defendants. Error to the District Court of Las Animas County, Hon. A. Watson McHendrie, Judge.

<p>1. Schools — Teaching Contract. A teacher’s contract with a school board, the execution of which begins after the expiration of the term of office of one of the members, is not invalid for that reason, and the board will be liable for a breach thereof.</p>

<p>Action to recover damages for killing of livestock by rail7 way company’s train. Judgment for plaintiff.</p> <p> Error to the District Court of El Paso County, Hon. J. W. Sheafor, Judge. </p>

Action by a shipper against a common carrier for damages alleged to have resulted from delay in delivery of livestock. A general demurrer to the complaint was sustained. Error to the District Court of the City and County of Denver, Hon. Francis E. BoucJc, Judge.

Action by plaintiff in error asking to be adjudged the owner and entitled to the possession of certain real estate. Judgment for defendant. Error to the District Court of Chaffee County, Hon. James L. Cooper, Judge.

Action to determine the sufficiency of an initiative petition. Held insufficient by the district court. Error to the District Court of the City and County of Denver, Hon. C. J. Morley, Judge.

<p>1. Appeal and Ebror — Abstract of Record. Errors assigned to rulings on admission of evidence and the giving and refusal of instructions will not be considered by the appellate court where the abstract contains neither the evidence nor any of the instructions.</p> <p>2. Error Waived. Error in the description of plaintiff as a corporation, which is corrected by the trial court without objection, is not available on review.</p>

<p>Disbarment proceedings. Petition granted.</p>

<p>Action for cancellation of deed. Judgment for defendants.</p> <p> Error to the District Court of Las Animas County, Hon. A. C. McChesney, Judge. </p>

Actions by an administrator to recover personal property and set aside a deed. Judgments for defendánts. Error to the District Court of Weld County, Hon. Neil F. ■ Graham, Judge.

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the District Court of Routt County, Hon. John I. Mullins, Judge. </p>

Action by administratrix, on a contract for rental of sheep, made by defendants with her intestate. Judgment for plaintiff. Error to the District Court of Bent County, Hon. A. C. McChesney, Judge.

<p>1. Railroads — Stock Killing — Negligence. Under sec. 4, ch. 185, S. L. 1911, concerning tbe killing of stock by railroads, tbe killing or injury of an animal by a railway company is prima facie evidence of negligence on the part of the company. When the killing is admitted, the burden is upon the company to disprove negligence, and if it fails in this regard, it is liable for common law negligence, regardless of any question as to fences or yard limits.</p>

<p>Action against a street railway corporation. Judgment of nonsuit.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

Action for the determination of the respective rights of a widow and the heirs of her husband by a former marriage. Judgment for the heirs. Error to the District Court of Larimer County, Hon. Robert G. Strong, Judge.

<p>Action for specific performance. Judgment for plaintiff.</p> <p>Error to the District Court of Sedgwick County, Hon. L. C. Stephenson, Judge. '</p>

<p>Action to enjoin the collection of taxes. Judgment of dismissal.</p> <p> Error to the District Court of Alamosa County, Hon. Jesse C. Wiley, Judge. </p>

<p>1. Appeal and Error — Affidavits—Bill of Exceptions. Affidavits to be considered by the appellate tribunal must be brought before the court by bill of exceptions.</p>

<p>Action for attorney fees. Judgment for plaintiffs.</p> <p> Error to the District Court of Routt County, Hon. John T. Shumate, Judge. </p>

<p>Action in the district court to review an award of the Industrial Commission. Award affirmed.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Practice — Oral Stipulations. An oral stipulation cannot be enforced in case a dispute arises between the parties as to its terms.</p> <p>2. Appeal and Error — Bill of Exceptions — Waiver. Whenever an attorney approves a bill of exceptions and permits it to be allowed without making the objection that it is too late, he will be regarded as waiving that objection and consenting to the allowance.</p>

<p>Proceeding under the workmen’s compensation act. Judgment for claimant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>Action for conversion of personal property. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Logan County, Hon. L. C. Stephenson, Judge. </p>

Action by guest against a hotel corporation for conversion of baggage. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. John T. Shumate, Judge.

<p>On motion to strike bill of exceptions.</p>

<p>1. Pleading — Complaint—Action for Possession of Beal Property. In an.action for possession of real property under chap. 23 of the code, a complaint is insufficient which lacks the allegation, that the plaintiff is entitled to possession, which is required by sec. 286.</p> <p>2. Complaint — Forcible Entry and Detainer. A complaint under the forcible entry and detainer act, where the only breach is failure to pay rent, is deficient, if it does not show three days’ notice in writing requiring in the alternative the payment of rent or possession of the premises.</p> <p>3. Lease — Construction a Question for the Court. What a lease contains is a question for the court and ought not to be submitted to a jury for determination.</p> <p>4. Ejectment — Termination of Lease — Action for Bent. A suit in ejectment by a landlord against a lessee is an irrevocable election to declare the lease terminated. A suit, for rent which accrues subsequent to such termination, cannot be maintained and the receipt of rent after suit is instituted does not revoke the forfeiture.</p> <p>5. Landlord and Tenant — Action for Mesne Profits or Damages. The remedy open to a' landlord for rent of premises after termination of a lease is an action for mesne profits or damages.</p> <p>While these might be recovered under code chap. 23, they cannot be in an action of forcible entry.</p> <p>6. Receipt of Rent — Waiver of Forfeiture. If a landlord by mistake of fact or law, demands and has judgment for more rent than he is entitled to receive, he does not by that alone waive the forfeiture, to enforce which was the very purpose of his suit.</p>

<p>Action by mortgagee for possession of a motor truck. Judgment for defendant.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Sedgwick County, Hon. L. C. Stephenson, Judge. </p>

Action to restrain election officials from proceeding under a certificate of nomination alleged not to have been filed in the proper office. Injunction granted. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

<p>Action to quiet title to an irrigation ditch and water right. Judgment for defendants.</p> <p> Error to the District Court of Chaffee County, Hon. James L. Cooper, Judge. </p>

Action against a public trustee to compel by mandamus the execution and delivery of a second trustee’s deed. Writ granted. On Application for Supersedeas. Error to the County Court of Eagle County, Hon. L. B. Tague, Judge.

<p>Plaintiff in error was convicted of violations of the prohibition act of 1915.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>1. Railroads — IAaMlity as Warehouseman. Where there is no negligence on the part of a railroad company, it will not be liable as a warehouseman or bailee, for the loss of goods by fire.</p> <p>2. Delivery of Goods — Receipt. Where goods have reached their destination and the consignee gives his receipt for the same, there is a final delivery and it makes no difference that a part of the goods are temporarily left on the carrier’s premises.</p> <p>3. Liability for loss of goods. Where the consignee gives his receipt to a railroad company for goods shipped to him over its line, and removes a part of them, the company will not be liable for damage to, or destruction by fire of the goods remaining on its property.</p>

Proceeding involving contempt of court for violation of an order concerning the custody of minor children. Plaintiff in error found guilty of contempt. On Application for Supersedeas. Error to the.District Court of La Plata County, Hon. W. N. Searcy, Judge.

Petition for writ of habeas corpus by an inmate of the penitentiary. Demurrer to petition overruled and petitioner discharged. Original Proceeding.

<p>1. Sales — Rescission. Where a seller, who claims fraudulent representations on the part of the buyer, fails to disaffirm the sale when he discovers the alleged fraud, and the rights of innocent third parties intervene, he cannot recover possession of the property by replevin.</p>

<p>1. Appeal and Eeeoe — Agreed Statement of Facts. A question which is excluded by an agreed statement of facts, not determined on review.</p> <p>2. Railroads — Construction of Crossings. The duty to build railroad crossings on highways, as to those laid out over railroads already constructed, is not imposed by common law. It is strictly one of statutory enactment.</p> <p>3. Estoppel — Railroads—Crossings. A railroad company is not es-topped from denying duty'to maintain a bridge over its tracks, where the necessary element of estoppel, i. e., change of position by the party alleging it, is wanting. •</p> <p>4. Mandamus — Lies When. In an action for mandamus, the duty to 1 be enforced, must be clear and definite.</p>

<p>, Action to enjoin the removal of fences. Judgment for plaintiff.</p> <p> Error to the District Court of Fremont County, Hon. James L. Cooper, Judge. </p>

<p>Action on promissory note. Judgment for defendants.-</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

Proceedings to review an order of the utilities commission directing the opening of a street across a railroad right of way. ' Writ of Review to the Public Utilities Commission.

<p>1. Cbimistai, Law — Right to Bail After Conviction and Before Sentence. Section 19 of the Bill of Rights, relating to bail, does not give a defendant an absolute right to bail after conviction and before sentence, this being a matter within the discretion of the trial court.</p>

<p>1. Pleading' — Complaint An allegation in a complaint that plaintiff by mistake and error issued to tbe defendant 556 shares more than sbe was entitled to, and issued to himself 556 shares less than he was entitled to, held sufficient to constitute a cause of action.</p> <p>2. Appeal and Error — Sufficiency of Evidence. Evidence reviewed and held sufficient to support a decree for plaintiff.</p> <p>3. Limitations — Fraud and Mistake. Whatever statute of limitations applies to a case of fraud or mistake, it does not begin to run in equity, until after the discovery of the fraud or mistake.</p>

Action by passenger against the driver of an automobile for damages. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

Action against a county for damages resulting from the construction of a bridge. Judgment for plaintiff. Error to the District Court of Logan County, Hon. L. C. Stephenson, Judge.

<p>1. Appeal and Error — Motion for New Trial — "Writ of Error. Motion for new trial was overruled July 23, 1917 and judgment regularly entered. The record contained an order of date October 8, 1917, denying a motion for new trial, but containing nothing to show why this order was entered after the final disposition of the case. Held, that the latter order had no effect in extending the time for suing out a writ of error.</p> <p>2. Record — Letters of Clerk of Court. Unauthenticated letters of the clerk of a court to an attorney, which are not made part of the record, cannot be filed in the court of review.</p>

<p>1. Judgment — Injunction Against the Enforcement of. In order to enjoin the enforcement of a judgment at law on the ground that it is unconscionable and inequitable, the complaining party must show facts which prove it to be against conscience to execute such judgment and of which he could not have availed himself at law, but was prevented by fraud or accident, unmixed with any fraud or negligence in himself or his agents.</p> <p>2. Equity. In equity, no. man can take advantage of his own wrong.</p>

<p>1. Appeal and Error — Pleading—Evidence. Where there is insufficient testimony to ■ sustain the defenses pleaded, and the evidence supports the judgment, it -will be affirmed.</p>

<p>Action to revive judgment. Revival against one of two defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

Proceedings before the Public Utilities Commission involving the cessation of service by a railroad company. Order permitting the company to dismantle its road. Writ of Review to the Public Utilities Commission.

<p>1. Agency — Commission. An agent is not entitled to a commission on the sale of machinery where his principal negotiated the sale long prior to' the making of the agency contract.</p> <p>2. Judgment — On Issue Not Pleaded. A litigant having tried a cause on a theory which is in accord with his pleadings, cannot sustain a verdict on evidence competent only under an entirely different theory.</p> <p>3. Appeal and Ebror — Excluded Evidence. Where a question calls for a statement of fact clearly within the knowledge of the witness, it is error to sustain an objection thereto on the ground that it calls for a conclusion.</p>

<p>Action to restrain proceedings under execution levy on real estate. Judgment for plaintiff.</p> <p> Error to the District Court of Pueblo County, Hon. J. E. Rizer, Judge. </p>

<p>Action against employer for personal injuries sustained by employe. Judgment for plaintiff. '</p> <p> Error to the District Court of Fremont County, Hon. James L. Cooper, Judge. </p>

<p>Action on promissory notes. Judgment for defendant.</p> <p> Error to the County Court of Pueblo County, Hon. Frank G. Mirick, Judge. </p>

<p>1. Mines and Mining — Possession of Tunnel — Injunction. The provisions of sec. 175 code 1908, relative to possession of mining property, are applicable to tunnels and tunnel sites, where one is deprived of possession while temporarily absent.</p> <p>2. Action for possession — Title. In an action for possession under code sec. 175, the question of title to the property involved is irrelevant.</p> <p>3. Possession — Rightfulness of. One in possession of a mining tunnel cannot lawfully be deprived of the property by another who takes possession during the temporary absence of the claimant, and in an action by tbe latter to recover, rightfulness of possession is not an issue under code sec. 175.</p> <p>4. Surrender of Possession — Evidence. ' Tbe claim of surrender of possession of a tunnel site is not supported by an affidavit which is only in evidence for the purpose of identification and explanation of tbe premises and which shows only the surrender of a mill site and not the tunnel site.</p>

Action under sec. 21 of the code, to determine a claim which defendant is alleged to have asserted against plaintiff. Judgment for defendant. On Application for'Supersedeas. Error to the District Court of the City and County of Denver, Hon.-Charles C. Butler, Judge.

<p>1. Appeal and Errob — Finding of Fact. The appellate court will not disturb a finding of fact made upon conflicting evidence.</p> <p>2. Pledge — Retention of Property. Where property is pledged to indemnify one for losses he may sustain, or payments made, on account of failure of pledgor to carry out the terms of a contract, pledgee is not entitled to retain the property where no losses or payments for which he could claim indemnity, are ( established by the evidence.</p> <p>' 3. Pleading — Evidence—Burden of Proof. In an action on contract, a defense, which only sets up a different version of the contract upon which the action is brought, is to he treated as a general denial, and imposes no burden upon .the defendant; hut the plea of a version which would not only defeat recovery, hut would justify a judgment for defendant, and is in fact presented as the basis of a cross complaint, requires affirmative proof.</p>

Action by administrator to recover property alleged to belong to estate of decedent. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. John T. Shumate, Judge.

<p>1. Injunction — Restraining Order — Bond. Where the showing was ample to support the issuance of a temporary restraining order under sec. 164 of the code, a motion for judgment on the bond executed pursuant to the provisions of the section was properly denied, notwithstanding the restraining order was eventually set. aside and vacated.</p>

<p>1. Principal and Agent — Real Estate Broker — New Deal. Where a real estate broker produced a buyer to whom a sale was made, the fact that the price paid was lower than first suggested does not constitute a new deal brought about solely by the owner, whre all the property listed was not included in the deal.</p> <p>2. Real Estate Broker — Commission. Where there is no agreement as to the amount to be paid a real estate broker for his services, a reasonable compensation is the rate prevailing among local agents.</p> <p>3. Appeal and Ebbor — Findings and Judgment on Conflicting Evidence. Findings of fact determined on ample, competent testimony and the judgment entered thereon, will not be disturbed on. review.</p>

<p>Plaintiff in error was convicted of burglary.</p> <p> Error to the District Court of Summit County, Hon. Francis E. Bouck, Judge. </p>

<p>1. Real Property — Trust Deed — Release T)y Mistake. The beneficiary under a trust deed released her lien and took a new trust deed in ignorance of an intervening judgment lien not disclosed by the abstract of title. In these circumstances she was not guilty of any negligence which would bar her or her successor in interest from relief in equity.</p> <p>2. Equity — Restoration of Legaft Rights. When legal rights of parties have been changed by mistake, equity restores them to their former condition, when it can be done without interfering with any new right acquired on the faith and strength of the altered condition of the legal rights, and without doing injustice to other persons.</p> <p>3. Real Property- — Restoration of, Mortgage Lien, The release of a mortgage in ignorance of an intervening judgment is generally held in equity to be a mistake, and the lien of the mortgage will be restored where it is shown that complainant was not guilty of negligence.</p>

Action against parents and child for personal injuries resulting from the latter’s use of a deadly weapon. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of Boulder County, Hon. George H. Bradfield, Judge.

<p>1. Ckiminai Law — Information—Amendment During Trial. Amendments of informations in matters of substance cannot be made at the trial, but amendments in matters of form are allowable.</p> <p>Amendments changing the name or description of the owner of property in a charge of larceny are amendments in a matter of form and allowable during the trial.</p> <p>2. Amended Information — Rearrangement and Reverification. It is not necessary to rearraign the defendant nor to have the information reverified after allowable amendment during the trial.</p>

<p>1. Bills and Notes — Promissory Note — Release of One of Several Mahers. The release of one of two or more joint, or joint and several obligors or promisors, operates to release the others.</p>

Proceeding before the Public Utilities Commission involving the authority of a municipality to erect and operate a lighting plant. Finding in favor of the municipality. Writ of Review to the Public Utilities Commission.

<p>1. Certiorari — Question to be Determined. The only question to be determined on a writ of certiorari, is whether the inferior tribunal or board has exceeded its jurisdiction, or greatly abused the discretion allowed it.</p> <p>2. Physicians and Surgeons — State Board of Medical Examiners. The decision of the state board of medical examiners, on a question within its jurisdiction, will not be disturbed on writ of certiorari.</p>

<p>1. Pleading — Parties—Waiver. An objection on the ground of defect in parties plaintiff is waived by answer.</p> <p>2. Water Rights — Abandonment—Decree. A decree enjoining diversion of a part of an appropriation of water is valid as to the parties to the proceeding, and 'in this case is not invalid because it fails to specify on whom, the loss of the abandoned portion should fall, that being a question to be settled in another suit.</p> <p>3. Abandoned Water Right — Innocent Purchaser. A water right being intangible, when abandoned has no existence in fact or theory.</p> <p>There can be no such thing as an innocent purchaser of an abandoned water right.</p>

<p>Action by irrigation district on contractor’s bond. Judgment for plaintiff.</p> <p> Error to the District Court of Morgan County, Hon. Charles Cavender, Judge. </p>

<p>1. Joint Adventurers — Fair Dealing. Each of several joint adventurers owes to the others absolute good faith, open and honorable dealing, free from deception and concealment.</p> <p>2. Rights and Remedies — Decree. In an action by stockholders of a corporation against one who has obtained stock in the company without consideration, the relief granted is sufficient if there is a correct enforcement of the rights of the parties as shown by the evidence.</p> <p>3. Joint Adventurers — Secret Profit. In the case of a secret profit by a joint adventurer, he must disgorge all that he surreptitiously acquired.</p> <p>4. Accounting for Profits. One of several joint adventurers who secretly receives hack all that he has invested in the enterprise, is left without any interest in the joint adventure and is not entitled to share in the profits or property pertaining thereto.</p> <p>5. Rights and Remedies — Rescission. While it is a corollary of the law of rescission that a party cannot retain property and also recover secret profits; if rescission is impossible, the wronged parties are not barred from all remedy, and that remedy is proper which gives them what the consideration furnished by them actually purchased.</p> <p>6. Action — By Stockholders of Corporation. The rule that a stockholder must demand action by the corporation before suit, has no application in an action b'y stockholder against stockholder, where the company is only a nominal or formal party.</p> <p>7. Pleading' — Amendment. A pleading may he amended to conform to the proof even to the extent of withdrawing an admission.</p> <p>8. Misjoinder. The objection of misjoinder of parties is waived by answer.</p>

Action for personal injuries sustained by contact with a broken electric wire. Judgment for 'plaintiff. Error to the District Court of Larimer County, Hon. Neil F. Graham, Judge.

<p>1. Workmen’s Compensation — Industrial Commission — Findings of Fact. It is duty of the commission to make sufficiently detailed findings of fact so that the courts can determine whether the order or award is supported by the facts. Statements -which amount to mere conclusions are not sufficient.</p> <p>2. Appeai and Error — Review of Evidence — Industrial Commission. The appellate court cannot review an industrial commission case on the evidence, but where the evidence is undisputed it may be treated as the findings of fact and considered accordingly.</p> <p>3. Workmen’s .Compensation — Accident. An accident under the various workmen’s compensation acts, must be traceable to a definite time, place and cause; the occurrence constituting an accident must be unexpected and must be the proximate cause of death, where death results, or of the disease which produced the death. "</p>

Action to enforce trust growing out of the execution of reciprocal wills by husband and wife, the wife having revoked her will after the death of the husband. Judgment for plaintiffs. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>Action to enjoin the foreclosure of a mortgage on mining property. Judgment for defendants.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of San Juan County, Hon. W. N. Searcy, Judge. </p>

<p>1. Contracts — Parol Evidence. In the absence of evidence of mutual mistake, fraud or misrepresentation, parol testimony is inadmissable to vary the terms of unambiguous written contracts, and they are to be construed according to the intention of the parties as therein expressed.</p> <p>2. Water Rights — Reservoir Contracts — Public Policy. A contract with a resérvoir company, which is constructing a storage reservoir, for the sale of water rights therein upon a status of equality based upon its capacity to store, with a clause enjoining diligent effort to conserve all the available flow, and absolving the company from liability if less than the maximum capacity is obtainable, is not against, but in conformity with public policy.</p> <p>8. Contracts — Public Policy. Public policy requires that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and enforced by the courts.</p> <p>4. Contract for Sale of Reservoir Rights — Construction. Under a clause in a contract for the sale of storage reservoir rights, providing that the system should on a certain date be 'turned over to a company to be organized by the subscribers to the rights, the property did not pass ipso facto to the contract holders immediately on the date mentioned, there being no company organized to take it over.</p> <p>5. Irrigation Districts — Contracts—Power of Board. Where the electors of an irrigation district vote to purchase an irrigation system to be completed according to certain plans and specifications prepared by an engineer, the district board is without power to authorize materia! changes in the plans and any contract entered.! into by the members thereof materially changing the system from that authorized by the electors, is illegal.</p> <p>6. Contracts — Specific Performance. Specific performance is not a matter of right, but of grace, and a court of equity will not be swift to enforce specific performance of a contract that has been allowed to expire by lapse of time and that has been defaulted and forfeited.</p> <p>7. Specific Performance — Mutuality. An action for specific performance of a contract for the construction of an irrigation system cannot be maintained unless plaintiff could be compelled in a court of equity at suit of the defendant, to perform it on his part. The remedy must be mutual.</p> <p>8. Irrigation Districts — Action iy Tax Payer. In the absence of fraud, a taxpayer of an irrigation district has no capacity to bring an action for the district against the will, discretion and judgment of the district board in whom is vested by statute the power and authority to exercise such judgment.</p> <p>Discretion exercised by the proper authorities, unless abused, cannot be reviewed by the courts at the instance of a taxpayer.</p>

Action against carrier for damage resulting from freezing of potatoes in transit. Motion of defendant for judgment on the pleadings, sustained. Error to the District Court of the City and County of Denver, Hon. John A. Perry, Judge.

<p> Writ of Error Dismissed. </p> <p> Error to the District Court of Pueblo County, Hon. J. E. Bizer, Judge. </p>

<p>1. Vendor and Vendee — Frauds—Misrepresentations. The agent of the owner represented to a purchaser of property that it was listed with him for $1.500 when in fact it was listed at the value of $800. Held, that this was a flagrant misrepresentation as to the sum for which the property could he purchased, and therefore as to value.</p> <p>2. Hraud — Representations. In the sale of a restaurant property the amount of income and profits derived from the business is peculiarly within the knowledge of the owner and the purchaser is justified in relying upon the representations of the seller in that respect.</p>

<p>Proceeding involving attachment levy on real property. Attachment dismissed.</p> <p> Error to the District Court of Phillips County, Hon. H. P. Burke, Judge. </p>

<p>1. Evidence — Inconsistent with Admitted Facts. The conclusion of a witness which is so at variance with admitted facts as to he incongruous, should receive no consideration.</p> <p>2. Negligence — Last Clear Chance. Evidence reviewed and held insufficient to carry the cause to the jury under the doctrine of last clear chance in favor of one admittedly guilty of negligence continuing. to the moment of the accident.</p>

<p>Action to quiet title. Judgment for plaintiff.</p> <p> Error to the District Court of Phillips County, Hon. II. P. Burke, Judge. </p>

<p>Motion that a judgment be declared a lien on money belonging to defendant in possession of sheriff. Motion denied.</p> <p> Error to the District Court of Pueblo County, Hon. Samuel D. Trimble, Judge. </p>

<p>1. Pleading — Sufficiency of Complaint. Allegations oí the complaint in an automobile collision case reviewed and held to state a cause of action.</p> <p>2. Automobiles — Law of the Road. The law of the road requires each of meeting automobiles to turn seasonably to the right.</p> <p>3. Negligence. The fact that one of the parties was at the left of the road, unexplained and unjustified, is conclusive of negligence.</p> <p>4. Evidence — Sufficiency in Auto Accident Case. While it is true that the failure of plaintiff to carry two headlights as required by statute, if unexplained or unjustified, was negligence per se, nevertheless, a verdict for plaintiff will not be disturbed- on that ground if there is room for two opinions under the evidence as to whether such negligence was a contributing cause to the collision.</p> <p>5. Trial — Questions for Jury. In an auto accident case, whether plaintiff drove too fast or neglected to lower his speed, are questions of fact for the jury.</p> <p>6. Appeal and Error — Refused Instructions. In an action involving an automobile collision at night, where it appeared from the undisputed evidence that plaintiff’s car did not carry two headlights, defendant was entitled to an instruction as to the effect upon the case of that circumstance, and the refusal of the court to give such an instruction when requested, was prejudicial error.</p> <p>7. Peactice — Undisputed Facts not for the Jury. It is bad practice to leave undisputed matters of fact to tbe jury as questions for tbeir determination.</p>

Action for damages growing out of an assault and battery. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. John A. Perry, Judge.

<p>Proceeding under the workmen’s compensation act. Claim denied.</p> <p> Error to the District Court of Pueblo County, Hon. James A. Park, Judge. </p>

<p>Proceeding under the workmen’s compensation act. Claim disallowed.</p> <p> Error to the District Court of the City and County of Denver, Hon. Francis E. Bouck, Judge. </p>

<p>Plaintiff in error was convicted of the larceny of automobile tires.</p> <p> Error to the District Court - of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

Action against the owner of mining property to recover wages for labor on the property performed for a lessee. Judgment for plaintiffs. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>1. Real Peopebty — Contract of Sale. Where the owner of real property makes a specific offer to sell, through a real estate broker, , which offer is accepted by a purchaser, the negotiations being evidenced by letters and telegrams between the owner and broker, the transaction constitutes such a contract as may be specifically enforced.</p> <p>2. Speciftc Performance — Damages. Where the owner fails to carry out a contract for the sale of real property, and at the time of the trial -it was beyond his power to specifically perform, a judgment against him for damages was sustained.</p>

<p>Petition for mandamus. Demurrer of defendants to alternative writ of mandamus sustained and proceedings dismissed.</p>

<p>Plaintiff in error was convicted of statutory rape.</p> <p> Error to the District Court of Kit Carson County, Hon. Arthur Cornforth, Judge. </p>

<p>1. Divorce and Alimony — Payment—Presumption. The appellate court will presume that an order of the trial court for the payment of costs and attorney fees will be obeyed after the denial of a supersedeas.</p> <p>2. Appeal and Error — Moot Questions. It is not the duty of the appellate court to give opinions upon moot questions or to declare rules of law which cannot affect the rights of the parties litigant.</p>

<p>1. Appeal and Ebror — Sufficiency of Evidence. Where the evidence is sufficient to justify the submission of the case to the jury and to sustain a verdict for plaintiff, the judgment will not be disturbed on review.</p>

Action for conversion .of money by real estate broker. Judgment for plaintiff. On Application for Supersedeas. Error to the County Court of the City and County of Denver, Hon. Adair J. Hotchkiss, Judge.

<p>Proceeding under the Workmen’s Compensation Act. Claim denied.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

Action on agreement to accept draft given in payment for cattle. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>1. Pleadings — Demurrer to Answer — Material Allegations to Be Taken as True. In an action for the forfeiture of a bond in a criminal case, all the material allegations of the defense are, for the purposes of a demurrer to he taken as true.</p> <p>2. Bonds — Criminal Recognizance — Forfeiture. When in a criminal cause, the district attorney agreed that he would consent to or move for a continuance when the case was called for hearing on the day fixed for trial, and the defendant in good faith relied upon such agreement and assuming that the matter would he continued, did not appear, it would he inequitable to forfeit his bond.</p>

<p>Proceeding under the workmen’s compensation act. Cause remanded with directions.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

Action to recover money paid on the purchase price of a rooming house. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of the City and County of Denver, Hon. C. J. Morley, Judge.

Proceeding under the workmen’s compensation act. Judgment limiting compensation for non-resident dependents to $1000. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>Petition by father for custody of minor children. Denied.</p> <p> On Application for Supersedeas. </p> <p> Error to the Juvenile Court of the City and County of Denver, Hon. Ben B. Lindsey, Judge. ' </p>

<p>Action to set aside report of receiver and share in proceeds of property. Petition denied.</p> <p> Error to the District Court of Clear Creek County, Hon. H. S. Class, Judge. </p>

<p>Action of city against defendant for the sale of intoxicating liquor. Judgment for defendant.</p> <p> Error to the County Court of Montrose County, Hon. S. S. Sherman, Judge. </p>

<p>1. Slander — Evidence. In an action for slander, evidence with reference to a prosecution for lunacy instituted by the defendant, is relevant on the questions of good faith and malice.</p> <p>2. Appeal and Error — Instructions—Exceptions. Error based on instructions will not be considered where the abstract of record contains no exceptions to the giving of such instructions. Rule 7.</p> <p>3. Slander — Publication. Further publication by the plaintiff of the slander is no defense.</p> <p>4. Probable Cause. Probable cause is no .justification in an action for slander.</p> <p>5. Damages — Proof. Falsely charging a school teacher with insanity is actionable per se, and. proof of specific damages is unnecessary.</p> <p>6. Excessive Damages. A verdict for $1500 in an action for slander, not disturbed as excessive.</p> <p>7. Trial — Argument of counsel. Failure to specifically instruct the jury to disregard portions of the argument of counsel, is npt ground for reversal, where there is evidence, though very slighf, upon which the fact could be claimed to be as assumed by counsel in his argument.</p>

Action against a telegraph company for damages occasioned by failure to deliver a telegram. Judgment for plaintiffs. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>1. Injunction's — Bond—Signature of Principal. Under secs. 163 and 172 of the Colorado code, relative to injunction bonds, failure of the principal to sign such bond does not render it invalid.</p> <p>2. Bond Executed After Issuance of Writ. It is immaterial whether an injunction bond is given before or after the issuance of the writ, where the purpose and effect in the interest of the plaintiff in the suit is undisputed.</p> <p>3. Bond — Approval Toy Cleric, — Presumption. In the absence of a showing that the clerk was without authority to approve injunction bonds, it may be assumed that such approval was regular and authorized.</p> <p>4. Injunction Bonds — Action on — -Elements of Damage. If the injunctive relief sought is ancilliary merely, expenditures made upon the main ease cannot be properly claimed as damages in a suit on the bond. On the other hand, if it is impossible to dissolve the injunction without a hearing upon the merits, all expenses connected with such trial, including attorney fees, are proper elements of damage.</p>

Proceeding to review an order of the public utilities commission concerning telephone rates within the limits of a home rule city. Writ of Review to the Public Utilities Commission.

<p>1. Appeal and Ekkok — Yerdict. In an action on a promissory note, the defense being payment, where there is testimony tending to support the contentions of both parties, a verdict will not be disturbed on the alleged ground of insufficient evidence.</p> <p>2. Continuance — Motion for — Admission as to Evidence. On a motion for continuance by defendant, plaintiff admitted that if an absent witness were present she would testify to the payment of a note at a time alleged in the affidavit filed in support of the motion; on the trial, defendant attempted to prove a different time of payment. Held, that where an admission of evidence is obtained based wholly upon an allegation of time and place and the party is surprised on the trial by evidence of another time or place, the judge ought to give relief to the party so misled to his injury.</p>

<p>Petition for allowance of claim against an estate. Demurrer to petition sustained.</p> <p> Error to the County Court of El Paso County, Hon. W. P. Kinney, Judge. </p>

Proceeding involving the allowance of attorney fees by trial court. Order of allowance vacated. Error to the District Court of the City and County of Denver, Hon. A. C. McChesney, Judge.

<p>1. Husband and Wife — Separate Maintenance. In an action by a wife for separate maintenance, evidence to the effect that her husband left her for many months, during which period he only gave her $35, justified an order that he contribute to her support.</p> <p>2. Support of Children. In an action for separate maintenance where an allowance is made by the court for the support of the wife and children in connection with the part of the decree giving her their custody, it is not necessary that the order specify the part to be paid for the support of the children-.</p> <p>3. Chhdren — Care and Custody of — Support. When a court finds upon the question of custody of minor children that their best interest requires them to be left with the mother, it is proper tp order the husband to'pay for their maintenance.</p> <p>4. Jurisdiction — Domicile. Where it appeared that a family had established a residence in Colorado, the fact that the husband with the children left that state for Missouri after being served with process in a suit for separate maintenance by the wife, would not divest the Colorado court of jurisdiction.</p> <p>The question of residence is for the trial court, if it be necessary, to determine jurisdiction.</p> <p>Every sovereignty exercises the right to determine the status of persons found within its jurisdiction, and if defendant’s domicile had in fact been in Missouri, the court did not err in assuming jurisdiction of the cause.</p> <p>5. Husband and Wife — Separate Maintenance. Evidence of the wife’s need of support and of the husband’s ability to provide it is all that is required to authorize an order for her maintenance.</p> <p>6. Children — Custody of. Where a trial court finds it to be for the best interest of minor children to be left in the custody of the mother, that is a proper reason for determining the question in her favor.</p>

Action for death benefit under a fraternal and benevolent society contract. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

<p>1. Pleadings — Amendment—Equity. After remittitur from the supreme court, it was error for the trial court to deny a motion to amend the prayer of the answer, so that the relief asked would correspond with the approved findings of the court and equities of the case.</p>

<p>Petition under the Workmen’s Compensation Act for a lump sum settlement of compensation. Petition denied.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

Proceeding to revoke license to practice medicine. License revoked by state medical board, and action sustained by district court. Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge.

<p>1. Criminal Law — Impeachment of Witnesses. Impeaching questions must not be upon collateral, irrelevant or immaterial matters. The test of whether a fact inquired of in cross examination is collateral, is: Would the cross examining party be entitled to prove it as a part of his plea? If not, the matter is collateral to the issue.</p> <p>2. Appeal and Error — Evidence—Gross Examination. In the trial of a criminal case, it was error to permit the district attorney on cross examination of a medical expert, to ask if he had not expressed the opinion to designated persons, that the defendant was guilty, when he had expressed no opinion on the subject on direct examination; it vías also error, after he had answered the question in the negative, to permit the prosecution to introduce evidence to show that he had expressed such an opinion out of court.</p> <p>3. Criminal Law — Evidence—Opinion as to Defendant’s Guilt, Incompetent. In the trial of a criminal case, the opinion of no person as to the defendant’s guilt, is competent evidence, that being the very matter the jurors are to pass upon.</p>

<p>1. Pleadings — Complaint. In an action for conversion, an allegation in the complaint: That plaintiffs bought from defendants, and the defendants sold and then delivered to plaintiffs the property in controversy, sufficiently alleges ownership and possession in plaintiffs.</p> <p>2. Acttons — Conversion. It is immaterial in an action for conversion whether the property he converted innocently or knowingly. The gist of the action is the unauthorized appropriation of one’s property.</p> <p>3. Instructions — Conversion—Fraud. Fraud not being necessary to a recovery of actual damages in an action for conversion, the giving of an instruction to the effect: That if the jury find for plaintiffs, they should fix the damage at such amount as they find from the evidence to be the natural and necessary result of the fraud complained of, is error.</p> <p>4. Fraud — Action. One who is defrauded in the purchase of property has a right to rescind, or to affirm the contract and recover such damages as he has suffered by the fraud.</p> <p>5. Damages — Measure of — Instructions. In an action for damages, upon whatever theory the cause is tried, it is the duty of the court to instruct the jury as to the measure of damages under such theory.</p> <p>6. Evidence — Similar Transactions. When motive or intent with which an act has been performed is material, evidence of similar acts at or about the same time, is admissible; but the law does not permit proof of other and distinct offenses merely for the purpose of showing that defendant has a criminal disposition or character likely to make him commit the act with which he is charged.</p>

Action for damages to land occasioned by defendants running water through plaintiff’s property. Judgment for plaintiff. Error to the District Court of Larimer County, Hon. Robert G. Strong, Judge.

Proceeding involving the allowance of a claim against the estate of a deceased person. Judgment for claimant. Error to the District Court of Delta County, Hon. Thomas J. Black, Judge.