Volume 71 — Colorado Reports

<p>Action by real estate broker for commission. Judgment for plaintiff.</p> <p> Error to the District Court of Phillips County, Hon. L. C. Stephenson, Judge. </p>

<p>Action to set aside foreclosure sale. Judgment of dismissal.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>1. Public Lands — Homestead Entry t>y Minor. Though a homestead entry made by one under the disability of infancy and not the head of a family is invalid, such invalidity is cured by the attainment of majority prior to the inception of an adverse claim.</p> <p>2. Bills and Notes — Promissory Note — Consideration. The relinquishment of a homestead entry is a good and valid consideration for a promissory note.</p>

<p>1. Insurance — Life Benefit Certificate — Application. Where the applicant for a life benefit certificate in a fraternal society makes false answers to material questions contained in the application, which he warrants to he true, his beneficiary cannot recover on the certificate.</p> <p>2. Contract — Foreign Language. In the absence of fraud, a party may not avoid a contract which he voluntarily executes, on the ground that he could not read the language in which it was written, and that it was different from what he supposed. In such circumstances it is his duty to obtain a reading and explanation of it before signing.</p>

<p>Action for specific performance. Demurrer to complaint sustained.</p> <p> Error to the District Court of El Paso County, Eon. Arthur Cornforth, Judge. </p>

<p>Action on open account. Judgment for plaintiff.</p> <p> Error to the County Court of the City and County of Denver, Hon. George W.y Dunn, Judge. </p>

<p>Action on promissory note. Demurrer to complaint sustained and cause dismissed.</p> <p> Error to the County Court of Routt County, Hon. Charles A. Morning, Judge. </p>

<p>Action to set aside judgment. Judgment for defendant.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Rio Grande County, Hon. Jesse C. Wiley, Judge. </p>

<p>1. Vebdict — Directed—Conflicting Testimony. Where there is a substantial conflict of testimony upon the matter at issue, and the record shows that a verdict for defendant would not have been manifestly against the evidence, it is error to direct a verdict for plaintiff.</p>

Proceeding under the Workmen’s Compensation Act. The district court reversed the findings and award of the industrial commission. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>Proceeding under the workmen’s compensation act. On motion to dismiss writ of error.-</p>

<p>1. Adjudicated Cases — -Irrigation Districts — Bonds. See Doherty <£- Co. v. Steele, 71 Colo. 33.</p> <p>2. Evidence — Proofs in Possession of Opposing Party. The fact that one declines to produce documents showing his relations to one alleged to be his agent, is strongly corroborative of any other evidence of agency.</p> <p>3. Irrigation Districts — Bonds—Return. Where one obtains the bonds of an irrigation district with infirmaties, and another secures them from him with knowledge of the defects, both are bound to return them, whether the relation of principal and agent exists between them or not.</p> <p>4. Bonds Delivered as Partial Performance of Contract. Where an irrigation, district delivers its bonds in partial performance of a contract, which is never fulfilled by the contractor, and the work performed is worthless to the district without the completion of the whole, the consideration should be returned.</p>

<p>Action for the return of irrigation district bonds. Judgment for plaintiffs.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Appeal and Error — Practice. Questions not presented in compliance with court rules 8 and 31, will not be considered.</p> <p>2. Tbial — Nonsuit. Where the evidence 'is in conflict on all issues raised by the pleadings, 'the questions a,re of fact for the jury. In such circumstances a motion for nonsuit should be denied.</p> <p>3. Instructions — Partnership. Propositions of law should be concretely stated and not in the abstract, and the entire law upon any one proposition should, so far as practicable, be embodied in one instruction.</p> <p>A requested instruction on partnership held faulty as omitting personal responsibility for partnership engagements and losses.</p> <p>4. Joint Oionership. An instruction on this subject should tell the jury what in law would constitute joint ownership, and not leave to them the determination of the legal question</p>

<p>1. Featjd — Defense—Burden. Tbe burden is upon defendant to establish the defense of fraud by clear and convincing proof.</p> <p>Evidence reviewed and held not to sustain the burden in this case.</p>

<p>Action for damages occasioned by alleged negligent operation of an irrigating ditch. Judgment for defendant.</p> <p> Error to the District Court of Boulder County, Hon. George H. Bradfield, Judge. </p>

<p>1. Cebtiorari — Code and Statutory Provisions. The remedies under statutory section 3840, R. S. 1908, and section 331 code, 1908, discussed and distinguished.</p> <p>2. Statutory 'Remedy. The rule that the only question to be determined on a writ of certiorari is whether the inferior tribunal has exceeded its jurisdiction or greatly abused the discretion allowed it, has reference only to proceedings brought under the code. It is entirely inapplicable to proceedings before a justice of the peace, in which the party may ignore the code remedy and proceed solely under the statute.</p>

<p>1. Pleading — Unlawful Detainer — Replication. Our unlawful detainer act makes no provision for a replication, and the necessity therefor has been excluded.</p> <p>2. Actions — Equitable Defense — Eor the Court. Where the sole issue in an action is raised by an equitable defense, its determination is for the court, and not a jury.</p>

<p>Mandamus to compel the payment of the salary of a state official. Writ discharged.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Action in debt against the officers and directors of a corporation. Judgment of dismissal.</p> <p> Error to the District Court of Las Animas County, Hon. A. C. McChesney, Judge. </p>

Action for injunction and damages. Injunction denied and judgment for plaintiff for damages. Error to the District Court of Garfield County, Hon. John T. Shumate, Judge.

<p>Action for conveyance of interest in mining property. Judgment of dismissal.</p> <p> Error to the District Court .of Saguache County, Hon. Jesse C. Wiley, Judge. </p>

<p>1. Trust Deed — Foreclosure—Redemption by Judgment Creditor. The term “judgment creditor”, as used in section 2, chapter 112, S. L. 1917, concerning redemption of land from foreclosure sale by a judgment creditor, means judgment creditor of the person whose land shall be sold under execution. The statute refers only to creditors having judgments or decrees capable of enforcement -by sale of the land to be redeemed.</p> <p>2. Pleading — Allegations of Title. An allegation of ownership in fee in one party, negatives record title in someone else; and a denial of every title whatsoever, is a denial of record title.</p>

<p>1. Appeal and Ebbob — Sufficient Evidence. A verdict supported by sufficient evidence will not be disturbed on review.</p> <p>2. Contbaot — Construed. A contract for tbe management of a theater providing for monthly settlements for the business of the four weeks last preceding such settlement, construed to mean final monthly settlements, and not tentative, to abide the result of a final settlement at the close of the entire period.</p> <p>3. Construction — Ambiguity. Courts will not so construe a contract as to render it uncertain, and then admit evidence to explain, the ambiguity.</p> <p>4. Appeal and Ebbob — Instructions—Harmless Error. An instruction which submits to'a jury the question of the construction of a contract, while erroneous, is harmless error if in favor of the complaining party.</p> <p>5. Instructions — Bequests for. If any points are omitted from the court’s instructions, the error will not be considered on review in the absence of proper requests by the complaining party.</p>

<p>1. Probate Law — Widow’s Allowance. The purpose of the allowance is to provide for the comfort and sustenance of the widow and children pending administration and before distribution.</p> <p>2. Widow’s Allowance — Widow Residing Outside of State. A widow who has lived apart from her husband for three years, and is residing outside of the state and maintaining herself at the time of his death, which occurred in this state,’ is not entitled to a widow’s allowance under our statutes.</p> <p>3. ' Widow — Domicile—Statutory Construction. Under our statutes regarding widow’s allowance, the residence of a widow may be elsewhere than the state of her husband’s domicile at the time of his death.</p>

<p>Action to have a deed declared a mortgage. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Thomas J. Black, Judge. </p>

Action on alleged contract for division of real estate broker’s commission. Judgment of nonsuit. Error to the District Court of the City and •County of Denver, Hoh. Clarence J. Morley, Judge.

<p>1. Contract — Construed. Where a party executes to a bank notes for money which he desires to borrow, and the bank in consideration thereof, agrees to loan him such amount not to exceed the face of the notes, as he shall desire to use, the transaction constitutes a valid contract, and a breach thereof is actionable.</p>

Proceeding under the workmen’s compensation act. Award of the industrial commission set aside by the district court. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>1. Appeajg and Eekok — Sufficient Evidence. When a case is reversed and retried upon tbe old record alone, tlie only error that can be considered upon another writ of error from this court is the sufficiency of the evidence.</p>

<p>Plaintiff in error was convicted of the crime of robbery.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. H. E. Munson, Judge. </p>

Proceeding under the Workmen’s Compensation Act.. Judgment of the district court amending the award of the industrial commission. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>Plaintiff in error was convicted of malicious mischief.</p> <p> On Application for Supersedeas. </p> <p>Error to the County Court of Fremont County, Hon. Kent L. Eldred, Judge.</p>

<p>Plaintiff in error was convicted upon a charge of robbery.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Arapahoe County, Hon. Samuel W. Johnson, Judge. </p>

<p>1. Pbobate Law — Orphan’s Allowance — Statute of Foreign State not Controlling. Where a resident of New Mexico died leaving minor children in Colorado, where he owned a tract of land, the children were entitled to orphans’ allowances under the laws of Colorado, which are controlling on the question, rather than the statutes of the foreign state.</p> <p>2. Orphan’s Allowance — Priority of Claim. A claim for an orphan’s allowance is not a claim under the law of descents and distribution; the allowance is not an interest in the estate; it is a -preferred claim and first charge upon decedent’s property in the state, and is given priority over claims of general creditors.</p>

<p>Petition of interveners for dissolution of receivership. Petition granted.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

Action in mandamus to compel the state treasurer to invest money belonging to the state compensation insurance fund in United States bonds. Writ granted. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

Action for damages and the cancellation of a promissory note. Judgment for defendant on his counterclaim. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>1. Appeal and Error — Record. The record and bill of exceptions are sufficient to authorize a review where the record shows a final judgment, although the clerk’s certificate reads, “all court orders.”</p> <p>2. Liens — Agisters. It is essential to the attachment of the lien, that the agister should have possession and control of the animals.</p> <p>3. Agister's — Chattel Mortgage. The lien of a prior chattel mortgage is superior to that of an agister.</p> <p>4. Agisters — Wrongful Possession. There can be no agister’s lien founded on wrongful possession.</p> <p>5. Agisters — Attachment. One who has a lien for the care of live stock, waives it by suing for the amount of the debt and causing the property covered by the lien to be attached.</p> <p>6. Appeal and Ekror — Instructions. It is error for the trial court to refuse to give proper instructions when requested.</p>

<p>1. Pleading — Fraudulent Conveyance — Cause of Action. Allegations of a complaint to set aside alleged fraudulent conveyances reviewed and held to state but oné cause of action.</p> <p>2. Fraudulent Conveyances — Husband and Wife. The conveyance of real property by a husband to his wife with knowledge on her part of his fraudulent intent in so doing, is void as against his creditors.</p> <p>3. Pleading — Conclusions. Where sufficient facts are set out in a complaint to state a cause of action, allegations of conclusions may he treated as surplusage.</p> <p>Allegations of a complaint to set aside alleged fraudulent conveyances reviewed and held sufficient.</p> <p>4. Fraudulent Conveyances — Creditors. In an action to set aside alleged fraudulent conveyances, it is not necessary that the plaintiff should have been a creditor before the execution of the deeds, or should have been led into giving credit to the debtor under the belief that he owned the property in question.</p> <p>5. Record — Knowledge of Grantee. By withholding deeds from record with knowledge of the fraudulent intent with which they were given, the grantees become active parties to the fraud.</p> <p>6. Appeal and Error — Evidence. Evidence held sufficient to support the judgment for plaintiff in an action to set aside fraudulent conveyances.</p> <p>7. Fraudulent Conveyances — Consideration. A wholly inadequate consideration from a wife to her husband for the transfer of real property, will not defeat an action by a creditor to set aside the conveyance as fraudulent.</p>

<p>Action on life benefit certificate. Judgment for plain-</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>Libel and Slandek — Truth of Charge. On review of the case in an action for libel, held that the defense of “truth of the charge” was established by the evidence, and judgment for plaintiff reversed.</p>

<p>1. Insurance — Application. Where an insurance policy on livestock • provided that the company should not be liable for the death of any cow which was or became bred, but the application contained no answers to questions concerning that subject and was accepted by the company’s agent and home office, it was estopped to raise the question as a defense to an action on the policy.</p> <p>2. Evidence — Hearsay—Harmless Error. Where a party was allowed to testify to communications received from his foreman as to losses of cattle, the error, if any, was harmless where the facts testified to were corroborated by a witness of the opposing party and were fully established by the foreman himself.</p> <p>3. Insurance — Payment of Premium — Waiver. A condition of an insurance policy that the insurance should not be in force until the premium was paid, could be waived by a general agent of the company.</p> <p>4. General Agents — Authority. General insurance agents are empowered to waive conditions of forfeiture in a policy, and their knowledge is the knowledge of the insurer, notwithstanding any excess of their actual authority.</p>

<p>Action in damages for death by negligent act of railway company. Judgment for plaintiff.</p> <p> Error to the District Court of Teller County, Hon. John W. Sheafor, Judge. </p>

<p>1. Criminal Law — Gontinuance. The matter of a continuance rests in the sound discretion of the court, and under the facts of this case it is held the discretion was not abused.</p> <p>2. Statutory Construction — Offense on County Line. Under the provisions of section 1974, R. S. 1908, where a criminal offense is committed on a public highway between two counties, the trial may be had in either county.</p> <p>3. Special District Attorney — Appointment. The condition precedent for the appointment of a special district attorney having been found by the court, and there being nothing in the record to rebut tbe correctness of tbe finding, error assigned thereon is overruled.</p> <p>4. Severance. Where a motion for severance under the provisions of section 1981, R. S. 1908, was denied, and on the trial no objection was made on behalf of either defendant to any evidence which could by any possibility be considered as admissible’ against one and inadmissible against the other, the ruling of the court in denying the motion is upheld.</p> <p>5. Endorsement of Witnesses. The names of witnesses, the materiality of whose testimony is first learned by the district attorney upon the trial, may be properly endorsed on the information by order of court, in the absence of any showing by defendants of surprise or prejudice.</p> <p>6. Sufficiency of Evidence. Evidence reviewed and held sufficient to support a verdict of guilty.</p> <p>7. Appeal and Ebeoe — Jury Findings. Findings of a jury upon conflicting evidence will not be disturbed on review.</p>

Action to cancel deed; for partition of land, and division of personalty. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of Adams County, Hon. Samuel W. Johnson, Judge.

<p>1. Municipal Cokpobations — Disconnecting Territory. Under the provisions of chapter 52, S. L. 1913, providing for the disconnection of outlying territory from towns and cities, where the city for more than three years had maintained a street adjoining the land sought to be disconnected and lights upon the street, a petition for disconnection should not be granted.</p> <p>It was immaterial that the lights were upon the opposite side of the street from the land; that the street was at one time a county road, and that the amount of work done upon it by the city was small.</p> <p>2. Street Lights — Purpose. The purpose of street lights is to light the streets for travel, and not adjoining lands.</p> <p>3. Street Lights — Maintenance. The furnishing of street lighting by an independent company under contract with a city, construed to be a maintenance of such lighting by the city under the provisions of chapter 52, S. L. 1913.</p>

Action on life insurance policy. Judgment for plaintiff for amount of first premium. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>Action by real estate broker for commission. Judgment of dismissal.</p> <p> Error to the District Court of the City and County of ' Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>Action in damages for breach of contract. Judgment for defendant.</p> <p> Error to the District Court of Sedgwick County, Hon. L. C. Stephenson, Judge. </p>

<p>Action for cancellation of deeds. Judgment of dismissal.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>1. Appeal and Ebbob — Conflicting Evidence. A verdict based on conflicting evidence will not be disturbed on review.</p> <p>2. Evidence — Complaint in Another Action. Admission in evidence of part of a complaint filed by defendant in another action, held not error in this case.</p> <p>3. New Tbiab — Newly Discovered Evidence — Affidavit. Affidavit of newly discovered evidence, in support of a motion for new trial, held insufficient.</p>

<p>Action for cancellation of endorsement on note. Judgment of dismissal.</p> <p> Error to the District Court of Conejos County, Hon. Jesse C. Wylie, Judge. </p>

<p>1. Criminal Law — False Pretenses — Intent. To constitute the offense of obtaining money by false pretenses, there must be an intent to defraud.</p> <p>2. Presumption of Knowledge of the Law — Intent. The presumption which is indulged to prevent a violator of the law from escaping a penalty on the ground of ignorance, cannot be used to supply the intent to violate another law.</p> <p>3. False Pretenses — Injury. To justify a conviction of obtaining money by false pretenses, there must be positive evidence that the complaining party suffered loss on the transaction.</p>

<p>Action for allowance of claim against an estate. Judgment for claimant.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. George H. Bradfield, Judge. </p>

<p>1. Words and Phrases — ‘‘Suit.” The word “suit” held to mean a criminal prosecution as well as a civil proceeding.</p> <p>2. Statutory Construction — Service of Process — Sheriff Disqualified. Section 1299, R. S. 1908, relating to disqualification of the sheriff and performance of his duties by the coroner, hold to apply to criminal as well as civil proceedings.</p>

<p>1. Mines and Mining — Duty to Owner of Surface Rights. Unless there he a contract, express or implied, releasing him from the duty, the owner of coal only, when he mines it, must leave sufficient support to sustain the surface above.</p> <p>2. Deeds — Grantor Without Interest — Grantee. The grantee takes nothing by a deed, and is not bound by reservations therein, when the grantor had no right, title or interest in the property described.</p> <p>3. Real Property — Conveyance—Omission of Reservation. Where a conveyance of town property omits one of the reservations contained in the original plat and dedication, the omission must be construed to have been intentional.</p> <p>4. Evidence — Nonsuit. Evidence reviewed and held sufficient to go to the jury, and to require a defense.</p>

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

Quo warranto proceeding to test the validity of the organization of an irrigation district. Demurrer to answer sustained. Error to the District Court'of Garfield County, Hon. John T. Shumate, Judge.

<p>Action for conversion of mortgaged property. Judgment for plaintiffs.</p> <p> Error to the District Court of Boulder County, Hon. Neil F. Graham, Judge. </p>

Action in damages for breach of contract for purchase and sale of land. Judgment of dismissal. JError to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>1. Appeal and Ebeok — Findings. A general finding for defendants in an action for the cancellation of corporate stock on the ground that it was procured by fraud and without adequate consideration, is conclusive on review.</p> <p>2. Cobpobations — Cancellation of Stock. A corporation cannot maintain an action for cancellation of its capital .stock issued without fraud, for mere inadequacy of consideration which it had accepted; nor can a shareholder in its behalf.</p> <p>3. Equity — Maxim. He who comes into equity must come with clean hands, applied.</p> <p>4. Teial — Remarks of Judge — Findings. Remarks of the court during a trial are not findings, properly so called.</p> <p>5. Appeal and Eebob — Law of the Case — Re-trial. On re-trial of a cause which has been to the supreme court where the question of consideration for transfer of stock of a corporation was passed upon the determination is decisive, the evidence being substantially the same as on the first trial.</p>

<p>Action to recover compensation for labor and materials furnished. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Fremont County, Hon. James L. Cooper, Judge. </p>

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

<p>Action to recover amount of assessment on the capital stock of a corporation. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>1. Pleading- — Counterclaim. A counterclaim, in so far as its consistency is concerned, is a complaint, and is to be tested as to this question, by the same rules as complaints are tested.</p> <p>2. Actions — Remedies. A remedy based on the theory of the affirmance of a contract is inconsistent with one arising out of the same facts and based on the theory of its disaffirmance.</p> <p>3. Damages — Measure of. In an action for breach of warranty or false representations, the damage would be the difference in the actual value of the subject of sale and the value it would have had at the time, if it had then corresponded to the warranty, or the representations had been true.</p> <p>4. Trial — Causes of Action — Election. When a complaining party seeks to rescind a contract because of fraud, and to recover damages; and also at the same time to affirm the contract and recover. damages for a breach thereof, the failure of the court to direct an election, upon motion, is reversible error.</p> <p>5. Instrüctioks — Measure of Damages. An instruction as to the measure of damages, held erroneous under the facts of this case.</p> <p>6. Damages — Breach of Contract. Only such damages are recoverable for a breach of contract of warranty as are shown by the proofs to be the direct and proximate result of the breach. Apprehended damages which are merely conjectural, should be excluded from consideration.</p>

Action against a bank for surplus fund alleged to be remaining from the sale of collateral securities. Judgment of dismissal. Error to the District Court of El Paso County, Hon. J. W. Sheaf or, Judge.

Action to restrain county commissioners from including lands within a proposed drainage district. Judgment of dismissal. Error to the District Court of Prowers County, Hon. A. F. Hollenbeck, Judge.

<p>1. Dibel — Insanity. The publication, of an article stating that a person had been recommitted to the insane asylum, does not falsely impute insanity, and is not libel per se._</p> <p>2. Pleading — Special Damages. Where the libel is not one per se, the plaintiff must allege special damages.</p>

<p>1. Chattel Mortgage — Misspelled Name — Notice. Record of a mortgage given by Bermingham is constructive notice of one given by Birmingham. Validity of records and their effect as to giving constructive notice does not depend on accurate spelling, where the inaccuracy is not clearly misleading.</p> <p>2. Idem SonanS' — Records. The doctrine of idem sonans applies to records,</p>

<p>1. Atwat. and Ekroe — Fact Findings. Findings of fact by the trial court, made on conflicting evidence, will not be disturbed on review. ^</p> <p>2. Pbincipai and Agent — Unauthorised Acts — Ratification—Burden of Proof. The burden of proving ratification of an agent’s unauthorized acts rests on the party asserting it; but where an agent makes an unauthorized contract, and knowledge that he has done so is brought home to his principal who thereupon ratifies a portion of the contract and accepts the proceeds thereof, the burden rests upon the principal to show that he had no knowledge of the unratified portion, and that such lack of knowledge was not due to want of diligence.</p> <p>3. Ratification in part. A principal may not affirm a portion of an unauthorized contract, and disaffirm the remainder.</p>

<p>On motion for judgment for costs.</p>

<p>1. Workmen’s Compensation — Findings of Commission. On review - of an industrial commission case, the appellate court may consider only the question of whether there is evidence to support the findings of the commission. The award is conclusive upon all matters of fact properly in dispute, where supported by evidence or reasonable inference to be drawn therefrom.</p> <p>2. Wife — Dependency. Under tlie provisions of section 52, chapter 210, S. L. 1919, a wife is presumed to be wholly dependent upon her husband for support, unless she be voluntarily sepaarated, living apart from, and not dependent upon him in whole or in part, all three of which elements must be made to appear before the presumption of dependency can be overthrown.</p> <p>3. Dependency of Wife — Evidence. Evidence reviewed and held to support the findings of the commission that the claimant was not voluntarily separated or living apart from her husband at the time of his death, and that she was wholly dependent upon him for support.</p>

Action involving the claim of a reservoir company to the right to recapture and apply water seeping from its reservoir. Decree upholding the claim. Error to the District Court of Weld County, Hon. Robert G. Strong, Judge.

<p>1. Actions — Deceit—Damages. In an action for deceit, the damages recoverable are those which result directly and proximately from the deceit of which complaint is made.</p> <p>2. Damages — Measure of — Instructions. Instructions on the measure of damages in an action for deceit, reviewed and held erroneous.</p> <p>3. Principal and Agent — Gontract—Damages. An unauthorized agreement made by an agent is not ground for the recovery of the benefits which would have been derived from the contract if it had been performed.</p>

<p>1, Reai Property — Contract Construed. Contract between parties claiming an interest in land, in which “each consents with the other to be equal owners of said land”, construed to be a conveyance each to the other of one half of his or her interest, and based on a good consideration.</p> <p>2. Conveyance. No particular form of words or formality is necessary to pass tie title to real estate.</p>

Action for sale, and distribution of proceeds of a trust estate. Demurrers to complaint and cross-complaint, sustained. Error to the District Court of Boulder County, Hon. Neil F. Graham, Judge.

<p>Action on bond. Judgment for defendant.</p> <p> On Petition for Rehearing. </p> <p> Error to the District Court of Boulder County, Hon. George H. Bradfield, Judge. </p>

<p>Action for damages resulting from an automobile accident. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Action involving a claim against an estate. Judgment for claimant.</p> <p> Error to the County Court of the.City and County of Denver, Hon. Ira C. Rothgerber, Judge. </p>

<p>1. Libel — Pleading—Variance. In an action for libel, the gravamen of the charge is the publication, and an additional allegation that the defendants conspired together does not affect the sufficiency of the complaint, and the failure to prove the conspiracy does not constitute a variance.</p> <p>2. Mis-nomer — Identification. Where in an action for libel, the name of the plaintiff was mis-spelled in the alleged libelous article, it is for the jury to say whether there was a sufficiently accurate description to identify the plaintiff, and whether the defamatory matter was published of and concerning her.</p> <p>3. Intent. In an action for libel, it is not necessary that the defendant should have known and intended to defame the plaintiff. Intent is immaterial except as a part of express malice.</p> <p>4. Malice — Evidence. Lack of direct evidence of malice alone will not always defeat an action for libel. Where the libelous words are actionable per se, malice sufficient to sustain a judgment is presumed.</p> <p>5. "Words libelous per se. The charge that plaintiff called the American flag “a dirty rag”, is libelous per se.</p> <p>6. . Indirect Charge. Where the libelous article states that the plaintiff had been accused of referring to the American flag’ as a dirty rag, the effect is the same as though the charge had been made direct.</p> <p>7. Privileged Publication. The publication of a legal proceeding is qualifiedly privileged, but not until it has gone into court and thereby become public. Moreover, the qualified privilege permits nnly the publication of a truthful statement.</p> <p>8. Damages — Proof. The fact that no damage is proven in an action for libel, is immaterial, on motion for a directed verdict, where the case is one of libel per se.</p>

<p>1. Contract — Modification. Record reviewed and held not to establish that there was any binding contract for the modification of an agreement for the purchase and sale of sheep.</p> <p>2. Principal and Agent — Ratification. The contention that there was any agency and a ratification of the acts of the alleged agent by the principal under the facts of this case, overruled.</p>

<p>1. Fraud — Real Property. Record reviewed and the transaction, concerning real property, held fraudulent and collusive on the part of defendants, and the decree entered in favor of plaintiff upheld.</p> <p>2. Subrogation — Doctrine. The doctrine of subrogation is one of equity and benevolence, and its object is the prevention of injustice.</p> <p>The doctrine held applicable to the case under consideration,</p>

Action involving a real estate transaction and promissory notes in connection therewith. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of Weld County, Hon. Neil F. Graham, Judge.

<p>1. Accoed and Satisfaction — “In full to Date.” It is not every use of the words ‘in full to date” or equivalent phrase which constitute an accord and satisfaction in connection with the payment of a controverted claim.</p> <p>2. Elements. -To constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the-demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that if he takes it, he takes it subject to such conditions.</p>

<p>1. Writs — Search and Seizure — Subpoena Duces Tecum. Section 7, article II of the Constitution, providing security against unreasonable search and seizure, has no application to ordinary cases of the production of documents under a subpoena duces tecum.</p> <p>■2. Courts — Powers—Subpoenas. Courts have inherent power to issue subpoenas, and that power is not limited to the parties, nor is it affected by section 7, article II of the Constitution concerning search and seizure.</p> <p>3. Contemtt — Refusal to Produce Documents. A witness who refuses to produce documents in court as ordered, without justification, is guilty of criminal contempt.</p> <p>4. Perjury. A court has a right to punish as a contempt, manifest perjury committed in its presence, where the court knows judicially and beyond -doubt that the testimony is false.</p> <p>5. Purging' of Contempt. One who has given false testimony in a court, or conducted himself in an insolent and contemptuous manner in its presence, cannot purge that contempt by a written denial under oath that it ever occurred.</p> <p>6. Order of commitment — Recital ■ of Facts. Cases of criminal contempt are not within the provisions of section 356, code 1908, providing that the order of commitment shall recite the facts. In no event would more than a substantial compliance he required.</p>

<p>1. Appeal and Errob — Objections not Raised Below. Where defendant amended his answer accepting the issue tendered hy an amended reply, which issue was tried without objection upon his part, assignment of error based on the ruling of the trial court permitting the filing of the amended reply, not sustained.</p> <p>2. Taxes and Taxation — Lien—Sale. A tax sale cuts off the lien of any earlier levied tax.</p> <p>3. Color op Title — Tax Deed. A deed purporting to convey title may be defective, convey no title, and yet give color of title.</p> <p>4. Real Rropertt — Title—Possession and Payment of Taxes. Exclusive possession of land under color of title and payment of taxes for seven consecutive years constitutes a good title.</p>

<p>1. Constitutional Law — Executive Questions. Under tlie provisions of section 3, article VT of the Constitution, questions of the executive concerning the constitutionality of proposed legislation are only to be answered when doubt as to the constitutionality is expressed.</p> <p>2. Executive Questions — Premature. Questions propounded by the governor as to the constitutionality of a proposed legislative bill not introduced and which may never be passed, are premature.</p>

<p>1. Execution — Sale—Validity. An execution, and sale thereunder, are valid to the extent of the amount properly awarded by the judgment.</p> <p>2. Costs — Retaxation. When there 'is no fraud or wrongful purpose or mistake of fact, one may not object further to a taxation of costs against him after he has paid them, or received payment thereof.</p>

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>1. Water Rights — Conveyance. A deed conveying water rights appurtenant to described land, does not include a reservoir not mentioned, which is not located on the property conveyed, and which was not part of the grantor’s irrigation system or rights.</p> <p>2. Decree — Essentials of. A decree should fix with definiteness the rights and liabilities of “the parties, and failing to do so, is erroneous and may be void.</p> <p>3. Water Rights — Injunction—Decree. In a suit to restrain interference with the use of water and irrigation works, it is error to grant an injunction without definite findings as to the rights of the parties.</p> <p>4. Appeal and Error — Injunction—Insufficient Evidence. In a suit for injunction, where the evidence is insufficient to support any proper decree, the cause will be dismissed.</p>

<p>Action to quiet title. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>1. Personal Property — Joint Tenancy. Joint tenancies with the incident of survivorship, obtain as to personal property.</p> <p>2. Joint Tenancy — Bank. Deposits. A bank account may be so arranged that two persons shall be joint owners thereof during their mutual lives, and the survivor take the whole on the death of the other. In creating such an account, no particular name or formula is required, and courts in construing the transaction will he controlled by the substance of the arrangement, rather than by the name given it.</p> <p>3. Pleading — Complaint. Allegations of a complaint in a suit brought to compel the payment of bank deposits, reviewed, and held to state a' cause of action.</p>

<p>Action to recover proceeds from the sale of promissory Dotes. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>1. Woeds and Pubases — “Legal Proceedings,” “Action”. The words “legal proceedings”, and “action”, as used in section 679', R. S. 1908-, mean a suit in court.</p> <p>2. Real Proeebty — Action for Breach of Warranty — Possession. Under the provisions of section 679, R. S. 1908, before a grantee in possession can maintain an action against a grantor for breach of warranty, there must be a legal proceeding to obtain possession of the premises, notice to the grantor, and a refusal on his part to defend.</p> <p>This rule applies where the state holds title to the premises.</p> <p>3. Suit on Covenant — Paramount Title. A surrender to the paramount title will not, in Colorado, support a suit on a covenant of warranty or for quiet enjoyment.</p>

<p>Action for divorce. Petition of defendant to set aside findings and conclusions, granted.</p> <p> Error to the District Court of tKe City and County of Denver, Hon. Charles C. Butler, Judge. </p>

Action by wife for death of her husband in an automobile accident. Directed verdict for defendant. Error to the District Court of the City and County of Detiver, Hon. Julian H. Moore, Judge.

<p>Action for assault. Judgment for defendants.</p> <p> Error to the District Court of Kit Carson County, Hon. J. W. Sheaf or, Judge. </p>

<p>Action for breach of contract. Judgment for defendants.</p> <p> Error to the District Court of Kit Carson County, Hon. J. W. Sheaf or, Judge. </p>

Action to restrain the enforcement of an execution issued out of the district court upon a transcript of a judgment of a justice of the peace. Judgment of dismissal. Error to the District Court of the City and County of Denver, Hon. Henry J. Ilersey, Judge.

<p>1. Parties — Deceased Defendant — Personal Representative. While the personal representative of a deceased obligor cannot be joined with the survivor as a defendant in an action at law on a contract, the rule does not apply in a case where the deceased defendant is living at the time of the institution of the action. Upon his death, his personal representative may be substituted as a party under the provisions of section 15, code 1908.</p>

<p>1. Insurance — Accident Policy■ — -Limitation. An accident insurance policy is not a life insurance policy within the meaning of section 44, chapter 99, S. L. 1913, and division 2 of the section has no application to such policies.</p> <p>2. Adjudicated Gases. Judgment reversed on authority of Midland Casualty Co. v. Frame, 67 Colo. 179.</p>

<p>1. Intoxicating Liquors — Search and Seizure — Some. The evidence disclosed that there was nothing in the basement of a dwelling-house except a vat of “mash”, an empty tank and some kegs. Held that there was nothing to show that it was used for the ordinary purposes of a cellar in connection with a home, which would make it exempt from search without a warrant under the provisions of section 13, chapter 141, S. L. 1909.</p> <p>2. Appeal and Error- — Findings. Fact findings by the trial court, justified by the evidence, will not be disturbed on review.</p> <p>3. Judgment — Deficient Abstract — Presumption. It nowhere appearing in the abstract of record that it contains all of the evidence before the jury, all presumptions are in favor of the verdict and judgment, which will not be disturbed on review.</p>

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

<p>Plaintiff in error was convicted of burglary and larceny.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Montrose County, Hon. Thomas J. Black, Judge. </p>

<p>1. Contract — Construed. Contract construed and held not unilateral nor lacking in mutuality, and valid and binding.</p> <p>2. Consideration. A contract may be valid, even if no part of the consideration appears upon its face.</p> <p>8. Pijbading — Form—Name. The demands set out in a pleading f are ndt to be defeated by mere mis-nomer or bad form.</p> <p>4. Counter-claim — Nature of. Under the provisions of section 63, code 1908, a claim based upon contract may not be set up as a counter-claim in an action founded upon tort.</p> <p>5. Appeal and Ekbok — Fact Findings. Findings of fact by the trial court which are supported by sufficient evidence, will not be disturbed on review.</p>

<p>1. Pkoiiibition — Writ—When Granted. Where the complaining party has no adequate and speedy remedy against the unwarranted action of a trial court except prohibition, the peremp- . tory writ will be granted.</p>

<p>1. Appeal and Eeboe — Nonsuit. Evidence reviewed and the action of the court in granting a nonsuit, upheld.</p> <p>2. Pbincipal and Agent — Ratification. If a principal with full knowledge of all the material facts, takes and retains the benefits of an unauthorized act of an agent, he thereby ratifies such act; but the evidence must be sufficient to establish the facts necessary to show ratification.</p> <p>3. Bills and Notes — Chech—Indorsement. The indorsement of a check alone is no evidence that the indorser received any benefit from it.</p> <p>4. Witnesses — Against Heirs or Representatives — Competency. In an action where one is defending as an heir or legal representative, a witness who is incompetent against the heir or representative, under the statute, may be competent to testify against other defendants in the action, who are not representatives or heirs.</p> <p>5. Appeal and Eeeoe — Harmless Error. The erroneous exclusion of testimony is harmless error, where the evidence which would have been given by the witness, was of facts admitted by the pleadings.</p>

<p>1. Statutes- — Construction. Section 7096, R. S. 1908, regarding the probate of wills, involves no question of jurisdiction, it is merely regulatory.</p> <p>2. Courts — County Court — Jurisdiction. County courts are courts of record having general jurisdiction which is unlimited in the determination of matters growing out of the settlements of . estates.</p> <p>3. Power to Bevohe Probate of Will. The county court as a court of probate, may, on proper grounds, revoke the probate of a will.</p> <p>4. Limitations — Statutes—'Construction. A statute of limitations should not be applied to cages not clearly within its provisions.</p> <p>5. Woeds and Phbases — “Determined”, in a judicial proceeding, means adjudicated on an issue presented.</p> <p>6. Statutes — Limitation—Construction. Section 7096, R. S. 1908, concerning the prohate of wills and conclusiveness thereof, construed, and held not to bar an action, commenced after the one year period, to vacate an order admitting a will to probate, it being alleged that the execution of the will was induced by fraud and misrepresentation.</p> <p>7. Fbaud — Judgment—Attack. The right to make a direct attack upon a judgment obtained by fraud, is not to be denied.</p>

<p>Action for interest in real estate. Judgment for defendants.</p> <p> Error to the District Court of Montrose County, Hon. Thomas J. Black, Judge. </p>

Action to recover for sheep alleged to have been sold plaintiff in error. Judgment for plaintiff. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>1. Judgments — Final—Review. An order of the county court: “That petitioner he allowed to withdraw her claim as prayed in the petition”, is not a final judgment and not subject to review on writ of error.</p>

<p>Action to cancel an alleged fraudulent deed. Judgment for plaintiffs.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge. </p>

<p>Petition by conservator for leave to compromise a claim. Petition denied.</p> <p> Error to the County Court of the City and Comity of Denver, Hon. Ira C. Rothgerber, Judge. </p>

<p>Action for divorce. Decree for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Action to set aside deed. Judgment for defendant.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

Proceeding under the workmen’s compensation act. Claim for compensation denied. On Petition for Rehearing. Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.

<p>1. Wateb Rishts — ¡Change of Point of Diversion — Evidence. In an action for a change of the point of diversion, evidence of the limited time of use of the water, acreage irrigated, and location of the irrigated lands with reference to the stream, held competent.</p> <p>2. Decree — Evidence. While an adjudication decree may not be modified after the time fixed- by statute for questioning it, yet into every decree must be read a provision that it does not authorize waste or excessive use; and while the issue of abandonment may not be tried in a proceeding to change the point of diversion, the question of the use or non-use of the water sought to be transferred, may be considered.</p> <p>3. Findings Not Supported hy Evidence. Evidence in a proceeding for change of the point of diversion of decreed water reviewed and held not to support the finding of the court that the proposed change would not injuriously affect the vested rights of other appropriators on the stream.</p> <p>4. Change of Point of Diversion — Burden of Proof. In an action for the change of point of diversion, the burden of proving that no injury to other appropriators would follow the proposed change, is upon petitioner.</p>

<p>1. Criminal Law — Evidence—Uncommunicated Threats. In a homicide case, evidence of statements of the deceased, made within a very recent time before the killing, and tending to show an attitude of hostility towards defendant, is competent. The fact that such statements were in the nature of threats which were uncommunicated to the defendant did not make them inadmissible.</p> <p>2. Intent of Defendant — Evidence. In a homicide case, the exclusion of defendant’s testimony as to his intent in striking deceased, is prejudicial error.</p> <p>3. Instructions — Erroneous. In a homicide case where defendant attempted to justify his act under the doctrine of self defense, it was error to instruct the jury, “that no provocation will justify a person in killing another, nor will it excuse him”, the effect being to withdraw his defense from the jury.</p> <p>4. Instructions — Inconsistent. Where inconsistent statements of law are made in instructions, it is impossible to tell which the jury followed, and in as much as it might have followed the wrong one, such instructions constitute prejudicial error.</p> <p>5. Evidence — Rebuttal. The admission of improper evidence on rebuttal which was likely to prejudice the jury against the defendant, held error.</p>

<p>1. Pbincipal and Agent — Agency—Burden of Proof. The burden of establishing agency is upon the party alleging it.</p> <p>Record reviewed, and held, that the trial court correctly determined the question in the case under consideration.</p>

<p>1. Pleading — ¡Ultimate Fact. The allegation that a certain street is a public highway, is an ultimate fact, like an allegation of ownership:</p> <p>2. General Denial — Evidence. A complaint alleged that a certain street was a public highway. Under a general denial, the introduction of any evidence tending to disprove the allegation was competent, and it was error to exclude a deed showing the street had been vacated, on the ground that the vacation had not been pleaded.</p>

<p>Action in mandamus. Writ denied.</p> <p> Error to the District Court of the City and County of Denver, Hon. H. E. Munson, Judge. </p>

<p>Action to foreclose mechanic’s lien. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Phillips County, Hon. L. C. Stephenson, Judge. </p>

<p>Plaintiff in error was convicted of the crime of rape.</p> <p> On Application for Supersedeas. ■ </p> <p> Error to the District Court of Pueblo County, Hon. James A. Park, Judge. </p>

<p>1. Appeal and Eebor — Costs—Fmal Judgment. A preliminary order that the parties advance certain costs to accrue, and that such order and judgment be a lien upon the lands of litigants, held a final judgment and reviewable by this court.</p> <p>2. Costs — Order. There is no authority for compelling defendants to advance any part of probable costs to accrue in a litigation, nor has the court power to make a rule to that effect.</p> <p>3. Invalid Order. An order of court which assesses costs not yet accrued, or which affects those who might ultimately be found not to be liable for costs, or who might be taxed with a less amount than in the order specified, is erroneous.</p>

Action in quo warranto to test the right to the office of insurance commissioner. Judgment for relator. Error to the District Court of the City and County of Denver, Hon. Henry J. Hersey, Judge.

Action to set aside certificate of purchase and sheriff’s deed, and for decree of title in plaintiff. Judgment of dismissal. On Application for Supersedeas. Error to the District Court of Delta County, Hon. Straud M. Logan, Judge.

<p>1. Principal and' Agent — Real Estate — !Authority of Agent. The authority of an agent to execute a contract for the sale of land must be in writing, and he must be given the power to do that which he assumes to do.</p> <p>2. Contract — By Real Estate Agent — Construction. A1 contract of agency, giving power to sell real estate, is to be strictly construed.</p> <p>3. Brokers — Real Estate — Authority. "Where real estate is placed in the hands of an agent with instructions in general terms to sell, he is not thereby authorized to enter into a contract of sale binding upon the owner.</p> <p>4. Specific Performance — Contract Must he Definite. To justify a decree of specific performance, the contract sought to be enforced must be reasonably certain and definite.</p> <p>5. Findings — Court Discretion. Under the facts disclosed, it is held that the court did not abuse its discretion in finding ,for defendant.</p>

<p>1. Divorce and Alimony — Alimony—Modification of Decree. A court of equity by virtue of its general powers has authority to modify a decree relative to alimony, when changed circumstances make it just and necessary.</p> <p>2. Alimony — Modification of Decree — Jurisdiction of Courts. A decree for a divorce and alimony was granted in the county court. Several years thereafter the wife commenced an action in the district court for additional alimony. Held, that the action was not one to modify the county court decree' — the amount involved being in excess of its jurisdiction — but an independent suit for equitable relief, which the district court had power to grant.</p>

Action for the cancellation of a deed. Decree establishing the rights of the parties in the property. Error to the District Court of the City and County of Denver, Hon. Charles C. Butler, Judge.

<p>Action on promissory note. Judgment for defendant.</p> <p> Error to the District Court of Yuma County, Hon. L. C. Stephenson, Judge. </p>

<p>Action on automobile liability insurance' policy. Judgment for plaintiff.</p> <p> Error to the County Court of the City and County of Denver, Hon. George W. Dunn, Judge. </p>

<p>1. Municipal Corporations' — Charitable Bequest. Under a statute of Pennsylvania giving municipalities power to hold property for, and make appropriations to maintain libraries, a town could accept a bequest for a library conditioned upon its perpetually maintaining the same.</p> <p>2. Perpetuities — Charitable Bequest — Condition Subsequent. A charitable bequest to a municipality is not void under the rule against perpetuities. The fact that to the bequest is attached a condition subsequent does not make the rule against perpetuities applicable.</p> <p>3. Trusts — Beneficiaries—Interest. The beneficiary in every trust has an interest sufficient to enable him to be a party in an action in relation thereto. Where a town is the beneficiary, it may prosecute a writ of error as trustee for its citizens.</p>

<p>1. Banks — Liability for Failure to Follow Instructions. Where a consignor of goods, forwards to a bank the bill of lading with instructions to deliver it to the consignee on compliance with ' certain requirements, and the bank fails to follow the instructions, it cannot escape liability for damages on the ground of ultra vires.</p> <p>2. Banks and Banking — Instructions—Evidence. Evidence reviewed and held not to support the contention of a bank that it substantially followed instructions received, and was therefore not liable for damages caused by its alleged failure in that regard.</p> <p>3. Contract — Breach—Liability. Where a bank is instructed to deliver a bill of lading on compliance with certain requirements by consignee, and it fails to follow instructions, to the damage of the consignor, there is a breach of a valid contract for which the consignor is entitled to nominal damages at least, if not more, and the fact that the damaged party compromises his claim against the consignee does not affect his right to a verdict, but only the amount thereof.</p> <p>In such a case the bank is not in the position of a surety, it merely broke its contract; but even if a surety, it would have the burden of showing it was injured by the compromise.</p>

Actions for specific performance and forcible entry and detainer. Judgments for defendant in error. Error to the District Court of Elbert Comity, Hon. Arthur Cornforth, Judge.

<p>1. Pbincipal and Agent — Agent’s Authority. One who deals with an agent is, by the knowledge of the agency, put upon inquiry as to the agent’s authority, and he accepts the agent’s statements of such authority at his peril.</p> <p>2. Contract — Statements of Agent. One who signs a contract containing the statement, that no agent is authorized to change, add to, or detract therefrom,, is bound thereby, and he cannot defend an action on the contract, on the ground that he trusted, and relied upon representations of the agent, because of his long acquaintance with him and belief in his integrity.</p>

Action involving the constitutionality of a portion of the workmen’s compensation act relating to insurance. Constitutionality upheld. Error to the District Court of the City and County of Denver, Hon. Henry J. Hersey, Judge.

Action for appointment of a receiver for corporation and for an injunction. Judgment for plaintiffs. On Application for a Supersedeas. Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge.

<p>Action to quiet title. Judgment for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the Distriet Court of Prowers County, Hon. A. F. Hollenbeck, Judge. </p>

<p>Action to remove cloud on title to real estate. Judgment for plaintiff.</p> <p> On Application for Supersede as. </p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>■Action on judgment of a foreign state. Judgment for plaintiffs.</p> <p> On Application for Supersedeas. </p> <p> Error to the County Court of Kiowa County, Hon. W. V. McMullen, Judge. </p>

<p>Action to quiet title to water right. Judgment for defendants.</p> <p> Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge. </p>

<p>Action to quiet title. Judgment for defendants.</p> <p> Error to the District Court of the City and County of Denver, Honorable Francis E. Bouck, Judge. </p>

<p>Action to recover taxes paid under protest. Judgment for plaintiff.</p> <p> Error to the District Court of Washington County, Hon. L. C. Stephenson, Judge. </p>

<p>Action in ejectment. Judgment for plaintiffs.</p> <p> Error to the District Court of Hinsdale County, Hon. Thomas J. Black, Judge. </p>

<p>Action to cancel a warranty deed. Judgment for plaintiff.</p> <p> Error to the District Court of the City and County of Denver, Hon. Greeley W. Whitford, Judge. </p>

<p>Plaintiff in error was convicted of murder in the second degree.</p> <p> Error to the District Court of the City and County of Denver, Hon. Warren A. Haggott, Judge. </p>

Plaintiff in error was convicted of loaning money in violation of the provisions of section 1, chapter 159, S. L. 1919. Error to the District Court of the City and County of Denver, Hon. A. F. Hollenbeck, Judge.

Action to restrain a bond issue for school purposes. Decree restraining issue beyond the limit fixed by statute. Error to the District Court of Las Animas County, Hon. A: F. Hollenbeck, Judge.

<p>On motion to vacate order assessing damages.</p> <p> Error to the District Court of the City and County of Denver, Hon. Clarence J. Morley, Judge. </p>

<p>Action for injunction. Decree for plaintiff.</p> <p> On Application for Supersedeas. </p> <p> Error to the District Court of Garfield County, Hon. John T. Shumate, Judge. </p>

<p>1. Appeal and Error — Fact Findings. Where the conflict in evidence is positive, material and irreconcilable, and the judgment, neither manifestly nor otherwise, against the weight thereof, it will not be disturbed on review on the ground that it is not justified by the evidence.</p> <p>2. Contract — Construed. Under a contract, plaintiff was to receive for his assistance in effecting the sale of a ranch, “one half of all sums in excess of $132,000 received for the ranch property.” Held, that he was entitled to one half of such excess without the deduction therefrom of other commissions and expenses.</p>

Action for the purchase price of goods sold and de- . livered. Judgment for plaintiff. On Application for Supersedeas. Error to the District Court of El. Paso County, Hon. Arthur Comforth, Judge.