Volume 9 — Colorado Court of Appeals Reports

<p>1. Abandonment—Water Rights.</p> <p>Abandonment is a matter of intention and operates instantly.</p> <p>2. Same.</p> <p>To constitute an abandonment there must be a concurrence of an intention to abandon with an actual relinquishment of the property.</p> <p>3. Same.</p> <p>It is held, under the facts stated, that an appropriator of water lost his right thereto by abandonment.</p>

<p> Appeal from the District Court of Pitkin County. . </p>

An action brought by the plaintiff in error against Alpheus Wright, county judge of Boulder county, the sureties upon his official bond and others, for damages for an alleged illegal arrest and imprisonment. On the 16th day of January, 1895, Esther M. Austin lent $514 to Catharine O’Brienne,' administratrix of the estate of John H. Hagar.

<p>1. Mechanics’ Liens—Statement.</p> <p>The requirement of the statute that a mechanic's lien claim shall contain a statement of the terms and conditions of the contract is complied with by a general statement of such terms and conditions as in the one described in the opinion.</p> <p>2. Same—Panties.</p> <p>Parties to a suit to foreclose a mechanic’s lien, other than the owner and those having claims for liens the statements of which have been filed as required by statute, are unnecessary.</p> <p>3. Same.</p> <p>In a suit to foreclose a mechanic’s lien, any number of claimants may join as plaintiffs, and those who do not so join may be made defendants.</p> <p>4. Same.</p> <p>When the record does not show that a person made a defendant was a necessary party to the foreclosure of a mechanic’s lien, it is, as between the other parties, immaterial whether or not process was served upon him.</p>

<p>1. Statute op Kbauds—Evidence—Pleading.</p> <p>The statute of frauds establishes a rule of evidence rather than one of pleading. Hamill v. Hall, 4 Colo. App. 290, distinguished.</p> <p>2. Same.</p> <p>It is generally held that whenever the agreement alleged by the plaintiff is denied, the plaintiff is put upon proof of a contract which is not void by the statute of frauds.</p> <p>3. Same.</p> <p>It is essential-to the validity of an agreement required by law to be in writing that its terms be ascertainable from the writing itself or by reference.</p> <p>4. Same.</p> <p>A salesman sold bills of goods on credit and indorsed the bills thus: ■ “O. K. McR.,” the latter letters being his initials. Held, that the indorsement did not constitute an agreement or memorandum in writing within the meaning of the statute of frauds, and that parol evidence was not admissible to show that by a prevailing custom of the trade it was intended by the indorsement that the salesman should be answerable to his employer for the default of the purchaser in making payment.</p>

<p>Emstoings of Fact, When Conclusive.</p> <p>The findings of fact by the trial court upon conflicting evidence will not be disturbed upon review.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Landlord and Tenant—Removal or Fixtures.</p> <p>Generally, whatever a tenant affixes to leased premises may be removed by him during the term, provided the same can be done without injury to the freehold.</p> <p>2. Same.</p> <p>A tenant is not to be deprived of his right to remove fixtures placed by . him on the leased premises during the term merely because of the fact that after he had so placed the fixtures he took a new lease, the execution of which was chosen as the most convenient method of extending the then existing lease.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

About the 1st of January, 1893, Aaron Ray, a resident of Louisville, Ky., temporarily residing in Boulder, in this state, died intestate at the home of his daughter, Henrietta Hider (appellee), in the city of Denver, leaving a wife, Annie Ray, and seven children by a former wife. Shortly after his death, Robert J. Pitkin, Esq., was appointed to administer his effects in the state of Colorado.

Appellant was the owner of some lots and buildings on Market street in this city. On the 10th of December, 1888, he entered into a contract with Braun & Bochow, as agents, to sell the property. It is alleged that under such contract Braun & Bochow negotiated, a sale of the property to Oscar Reuter for $120,000; that during the month of December Reuter paid appellants $1,000 on the purchase, to be forfeited in case Reuter did not complete the purchase.

<p> Appeal from, the District Court of Pitkin County. </p>

<p>Tííusts—Releases.</p> <p>A purchaser of real estate with knowledge that his vendor held the same subject to a deed of trust which was to be released only upon the performance of specified conditions, cannot compel a release thereof except upon proof of compliance with such conditions; and where one of the conditions was that money should be deposited in a bank to the credit of the beneficiary, proof of less than an exact compliance will not suffice.</p>

<p>1. Parties to Action on Constable’s Bond.</p> <p>An action on a constable’s bond, is maintainable only in the name of the people of the state of Colorado.</p> <p>2. Same.</p> <p>The judgment in an action on a constable’s bond must be for the full penalty thereof, and it is for the benefit not only of the person on whose relation the suit was brought, but of all others who are, or may become, interested in the enforcement of the bond.</p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p> Appeal from, the District Court of Arapahoe County. </p>

Appellee brought suit to recover the value of two horses alleged to have been killed, or so injured as to necessitate the killing of them, by an engine on the road of appellant. The value was alleged to have been $250. The killing was charged with being by the negligence of the company in operating the engine.

<p> Appeal from the District Court of Fremont County. </p>

<p>Ibbigating- Ditches—Public Lands.</p> <p>Tile act of congress of March 3, 1891, relating to irrigating ditches and reservoirs upon the public domain, applies only to vacant and unoccupied land, and in no way affects rights which had attached previous to its passage.</p>

<p>1. EOBEIGN COEPOBATIOJTS—CONTBAOTS.</p> <p>A contract made in this state by a foreign corporation without first having complied with the requirements of law as to the filing of certificates, etc., is valid. The only penalty prescribed by statute for a failure to file -such certificates is a personal liability upon the officers, etc., of the corporation in default.</p> <p>2. Same—Estoppel.</p> <p>One who, as agent of a foreign insurance company, has collected its money is, when called on to account, estopped to challenge its right to transact the business out of whi ch the demands collected accrued; and so, also, are the sureties upon his bond conditioned for the payment of the moneys so collected.</p> <p>3. Same.</p> <p>Whether the legislation whereby an insurance department was created, and an agent designated on whom process might be served, repealed the antecedent statutes which prohibited foreign corporations from doing business in this state without having first filed a certificate and designated an agent, considered, but not decided.</p>

<p>Appeal ebom County to District Court—Conditions.</p> <p>An appeal is allowable from the county court to tbe district court from a judgment by default on two conditions: First, that the party aggrieved make application to have the judgment by default set aside within ten days after its rendition; and, second, that the appeal be taken within ten days, or the time allowed by the court, after the refusal of the court to set aside the default.</p>

Appellant was and is the owner of forty acres of land in the county of Montrose. Appellees were the owners of parcels of land south and below that of appellant. In the year 1890 appellees constructed a lateral ditch from a main ditch to their lands for the purpose of irrigating the same.

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>Ebavd—Deceit—Measube of Damages.</p> <p>When an assignment of a claim has been obtained by fraudulent misrepresentations, the assig'nor may, under the circumstances of this case, recognize the transfer and call upon the assignee to respond in damages, the measure of which is the difference between the value of the thing assigned and the price paid for it.</p>

<p>1. Costs—Custodian’s Charges.</p> <p>When an officer finds that a custodian is necessary for the preservation of property levied upon under writ of attachment or execution, he may appoint one. But he must have his compensation allowed at not exceeding $2.50 per day, and taxed as costs in the action in the manner provided by statute (Mills’ Ann. Stats. Supp., 1898a), or it cannot be recovered of the losing party.</p> <p>2. Same—Jurisdiction.</p> <p>No contract made by the officer with the custodian for the payment to him of a fixed sum in consideration of his services is biuding upon the parties to the suit. The court in which the action is pending has exclusive jurisdiction to determine what costs are chargeable on account of the custodian’s appointment and services.</p>

<p> Appeal from the District Court of Logan County. </p>

<p> Appeal from the District Court of Weld County. </p>

<p>1. Salames—Justice op the Peace.</p> <p>The salary of a justice of the peace is payable out of the fee fund only.</p> <p>2. Same—Justice’s Clemc.</p> <p>The board of county commissioners is not authorized to hire a clerk for a justice of the peace, or to pay one who may be hired by the justice.</p> <p>3. Same.</p> <p>The fact that the board of county commissioners may have entered an order providing that the compensation for the services of one acting as clerk for a justice of the peace shall be a specified sum per month is not itself effective for the purpose of giving him a cause of action against the county for his services.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

June 21, 1888, James M. and W. F. Patrick made their joint promissory note, payable to the order of appellant, ninety days after date, for $2,500, and interest. Sometime after its maturity it was indorsed by appellant and became the property of the German National Bank. In August, 1890, the bank brought suit against the makers to collect the money. The complaint is in the ordinary form.

<p>CONTISACTS—CONSIBEBATION.</p> <p>If a party wlio lias employed another to do certain work causelessly, while the work is in progress and before completion orders it stopped, but promises to pay the amount originally agreed upon, his liability is the same as if the work had been finished, and that liability is a sufficient consideration for the promise to pay.</p>

<p>1. Appeals, Joint and Several.</p> <p>One of the several defendants cannot separately prosecute an appeal under an order granting an appeal to the defendants .jointly.</p> <p>2. Same—Liability of Surety.</p> <p>It seems that the liability of a surety on an appeal bond is as fully fixed by the dismissal of the appeal as by its prosecution to an adverse judgment.</p> <p>3. Same—Recitals—Estoppel.</p> <p>The recitals in an appeal bond bind the surety, and he may not be heard to say that the facts are not in accordance therewith,</p> <p>4. Same.</p> <p>Notwithstanding the dismissal of an appeal, the surety on the bond is estopped to say that he is not bound by his contract because of the failure to obtain that for which the bond was given.</p>

<p> Appeal from the County Court of Weld County. </p>

<p>1. Malicious Pbosbcution—Pbobable Cause—Pleading.</p> <p>In a complaint for malicious prosecution, want of probable cause may be alleged generally.</p> <p>2. Same.</p> <p>Probable cause sufficient to exonerate the prosecutor from liability does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution.</p> <p>3. Same—Advice oe Counsel—Quantum of Pboof.</p> <p>To entitle the defendant in an action for malicious prosecution to the protection which the advice of counsel affords, the proof must show what facts were communicated to him, so that it may be seen whether their presentation was full and fair.</p> <p>4. Samb.</p> <p>An instruction in an action for malicious prosecution which holds the plaintiff responsible for a report made by some other person assuming to act in his behalf, which was neither authorized nor ratified by him, is bad; but if, notwithstanding the misdirection, a verdict supported by the evidence be found for the plaintiff, it will be accepted as conclusive of the facts upon review.</p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p>County’s Liability bob Costs in Criminal Cases.</p> <p>A county is not liable for the costs of a defendant in a criminal case, unless the requisite statutory steps to charge it have been taken.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

The action was brought to enforce a mechanic’s lien against certain lots and a building. At the time the contract for building was filed, also at the time of the filing of the petition for a lien, the title to the lots was in John'H. Harris. The property was, it appears, conveyed to Maud H. Harris, the other appellee. On the 5th of March, 1893, John H. Harris, the record owner, made an agreement with William Miller to erect a building upon the lots.

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p>1. Practice—Nominal Damages.</p> <p>Action for damages for trespass on plaintiff’s mining claim and the taking of ore tlierefrom. Evidence by the defense that the cost of extracting the ore so taken exceeded its value. Held, under the circumstances of tlie case, tliat notwithstanding such evidence may have been uncontradicted, it was error to instruct the jury that the plaintiff could only recover nominal damages.</p> <p>2. Measure of Damages in Trespass on Mining Claims.</p> <p>The measure of damages for an innocent trespass by taking ore from another’s mining claim is the value of the ore so taken less the actual cost of digging that particular ore from the particular vein, tramming it to the bottom of the shaft and hoisting it to the suiface. The expenses incurred by the trespasser in running levels, etc., to reach the vein, are not to be included as part of such costs.</p> <p>3. Same—Burden of Proof.</p> <p>Whenever, in an action for damages for the wrongful extraction of ore from a mining claim, the defendant seeks to reduce the amount of recovery by evidence of the cost of extracting it, the burden of proof is upon him to show what he did and the value of what he took.</p> <p>4. Same.</p> <p>The measure of damage against a trespasser who extracts ore from another’s property, not as the result of an innocent mistake, hut under circumstances showing that he had knowledge of the situation or charging him with such knowledge, is the value of the ore without deduction on account of expenses in mining it.</p>

<p>Landlord and Tenant—Appurtenances.</p> <p>The defendant in error and others executed and delivered to the assignor of the plaintiff in error the following contract: “We, the undersigned, agree to pay each the sum set opposite his name, * * * yearly in advance to Samuel D. Hunter, or his assigns, in consideration that said Hunter and assigns give a lease to the United States government of the room now occupied by the post office in Park Place, Greeley, for the use of the post office for the term of five years, at a lower rate of rent than an adequate compensation for said premises, to the end that the post office in Greeley may be kept in its present location for the better accommodation of its patrons.” The assignor of the plaintiff in error performed his part of the agreement. Held, that the contract did not create the relation of landlord and tenant between the parties thereto, and that the right to receive payments thereunder was not appurtenant to the land upon which the post office was located and did not pass by a deed conveying the premises.</p>

On the 19th day of June, 1898,- appellant and appellee made the following contract: “ For and in consideration of the sum of thirteen dollars ($13.00) per month for each arc light furnished to said party of the second part, the said party of the first part agrees to furnish lights, and to light the streets and parks of Colorado City by electricity, for the period of ten (10) years from the first day of October, 1893, with as many arc lights as said party of the second part…

<p>1. Liquor Traffic—Licenses.</p> <p>Exclusive jurisdiction is given to cities and towns to prohibit the sale of liquor within their limits and for a distance of one mile beyond. Held, in a case where the defendant was found guilty of selling liquor in violation of an ordinance of a town within the specified distance of that town and another, but not within the limits of either, when he neither pleaded nor proved possession of a license from the adjacent town, the conviction must be upheld.</p> <p>2. Same.</p> <p>It seems that the selling of liquor at a place within the one mile limit of two towns, but not within the corporate limits of either, is, without a license from both, unlawful.</p> <p>3. Same.</p> <p>A county license to sell liquor is not available as a defense to a prosecution for selling in violation of a town ordinance.</p>

<p>1. Lien oe Execution.</p> <p>Ordinarily, an execution binds tbe property of tbe judgment defendant from the time when the writ comes into the hands of the officer.</p> <p>2. Same.</p> <p>If, by any act of the judgment creditor, an execution in the hands of an officer is held for a time unexecuted, or without attempt at execution, it is, during that time, inoperative as against other creditors.</p>

A suit of replevin, of a lot of ready-made clothing alleged to have been worth $579, of which appellees were the original owners. Appellant was sheriff and seized the goods upon a writ of attachment at the suit of I. L. Rachofsky v. David Hepner. Plaintiffs filed the following replication to the answer of the appellant: “ That said David Hepner was not the owner of the goods and chattels replevied at the time.

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Pabtnebship.</p> <p>If persons were not partners inter se, they cannot be beld as partners by third persons who were not misled by an appearance of a partnership.</p> <p>2. Same.</p> <p>Participation in the profit of a venture, or even in the profit and loss, does not, of necessity, constitute a partnership between the parties entitled so to participate.</p> <p>3. Same.</p> <p>One of the essential elements of a partnership is a community of interest in its subject-matter.</p> <p>4. Same.</p> <p>One partner has the right to make contracts, incur liabilities, manage the whole business and dispose of the whole property of the copartnership for its business in the same manner as all the partners could when acting together. The authority of the several members is a necessary sequence of their community of interest, and there is no partnership inter se without it.</p> <p>5. Same.</p> <p>Wlien the agreement between two or more persons in relation to the prosecution of an enterprise provides that one of their number shall incur no risk and be chargeable with no loss, the agreement is not one of partnership.</p> <p>6. Same—Evidence.</p> <p>Parol evidence is inadmissible to vary the terms of a written contract, but if the terms of the contract are equally susceptible of different constructions, surrounding circumstances and the acts and even the declarations of the parties may be given in evidence and considered, not to change the terms of the agreement, but to ascertain what meaning the contracting parties intended to convey by the terms employed, and to discover which of the constructions the parties themselves placed upon the language used.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

On the 1st day of June, 1892, appellant leased to appellee certain business property in the city of Denver for the term; of 10 years, rent to be paid monthly in advance; being-$888.88 rent. . Alease was made and executed by the parties. -, Appellee, to secure the payment of the rent, advanced to the appellant $1,666.66, and entered into possession of the premises. Appellees paid the full rent of $833.33 for each month up to the 1st day of August, 1893.

<p>1. Ceeditoe’s Bill.</p> <p>A creditor’s bill can be maintained only when the remedy afforded at ' law is ineffectual to reach the debtor’s property, or when the enforcement of the legal remedy is obstructed by some incumbrance or by a transfer which has been made to defeat creditors.</p> <p>2. Same—Evidence.</p> <p>Proof Of the issuance of an execution and of its return nulla bona is evidence that the legal remedy has been exhausted and that the defendant is without property other than that which is sought to be reached by the bill.</p> <p>3. Same.</p> <p>A complaint in the nature of a creditor’s bill, by which it is made to appear, inter alia, that for the purpose of defeating unsecured creditors of a corporation its directors organized a new corporation, and, at a sale of its assets under valid mortgages, procured the same to be bought in by a nominal purchaser for the use of the new company, when the value of such assets -was largely in excess of the amount secured by the mortgages, states a cause of action.</p> <p>4. Same.</p> <p>It seems that wherever equity obtains jurisdiction of an insolvent corporation, or of parties who have obtained its assets and misappropriated them, it will administer such assets so far as it is able to seize them, compel their application to the payment of its debts, and permit no advantage to be gained by its stockholders or by parties who are not innocent purchasers.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Alimony Pendente Lite—Sepabate Maintenance.</p> <p>Alimony pendente lite may be allowed in an action by a wife against her husband for separate maintenance.</p> <p>2. Same—Appeals.</p> <p>A judgment awarding temporary alim.ony in a suit for separate maintenance is appealable.</p> <p>3. Same—Statutoby Constbuction.</p> <p>The act of 1893, providing that any person living in this state who shall wilfully neglect to provide support for his wife may be adjudged guilty of a misdemeanor, does not affect the general powers of a court of equity to entertain suits to compel a husband to pay alimony consistent with his condition in life, and reasonable for the maintenance'of his wife or his family or both.</p>

<p> Appeal from the County Court of Arapahoe County.. </p>

<p>1. Contracts—Illegal Consideration.</p> <p>A promise based upon an illegal consideration is void.</p> <p>2. Same.</p> <p>A contract the consideration of which, was an agreement not to defend a divorce suit pending between the parties, is illegal and void.</p> <p>3. Same.</p> <p>Agreements to facilitate divorce are not to be tolerated.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Appellate Practice—Bill of Exceptions.</p> <p>Unless tlie evidence has been brought into the record by bill of exceptions, duly authenticated, the judgment cannot be reversed on the ground of insufficiency of the evidence to justify it.</p> <p>2. Promissory Notes—Payment.</p> <p>L. borrowed a sum of money on a note which he signed and to which he also signed the name of a firm of which he was a member, and put the money into the firm’s business. He afterwards paid the note, but requested the payees to hold it for collection (for his use) as a claim against tlie firm from its assignee for tlie benefit of creditors. Held, tbat the note, having been paid, was not so en-forcible.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Evidence.</p> <p>In an action by tbe payee against tbe maker of a promissory note, evidence of a parol contemporaneous agreement between tbe parties that it should become operative as a note only under certain conditions is admissible.</p> <p>2. Same—Payment.</p> <p>'Tbe acceptance of tbe note of a third person raises no presumption that it is accepted in payment of an antecedent debt.</p>

<p>Actions Against United States Court Receivers—Leave to Sue.</p> <p>A receiver appointed by a court of the United States may be sued in any court of competent jurisdiction in respect of any act or transaction of his in carrying on the business connected with the property, without previous leave of the court by which he was appointed, and an action so commenced maybe prosecuted to judgment. (Sup. R. S. U. S., p. 614.)</p>

<p> Appeal from the District Court of Fremont County. </p>

<p>1. Verdict—Review.</p> <p>A verdict supported by evidence, but rendered upon conflicting testimony, is, upon review, conclusive of the facts. Especially is this true where the issues have been twice submitted to juries and their verdicts have been in favor of the same party.</p> <p>2. Immaterial Error—Instructions.</p> <p>If, although the trial court used language in an instruction which was subject to criticism, the entire charge, considered as a whole,' shows that the jury was not improperly advised as to any material point, the error is immaterial.</p> <p>3. Practice—Judgment—Relief Demanded.</p> <p>Where there were two defendants, one of whom answered and one did not, and the complaint did not demand judgment including interest on the debt alleged to be due, a judgment allowing interest is, to that extent, erroneous. But this error may be cured on review by a modification of the judgment.</p>

<p>1. Trust Deeds—Immaterial Alterations.</p> <p>M. borrowed $4,200 and executed a note to the lender for that sum, with S. as joint maker. To secure the payment of the note, M. executed a deed of trust in the usual form, but reciting that S. was surety only, and that he had agreed to become surety in like manner upon a new note extending said note for ninety days. The note matured and it was replaced by another for ninety days, signed by M. and S. When the latter fell due, a payment was made by M. reducing the amount due thereon to $3,536, and a sixty day note for that sum was given by M. and S. in lieu of the second note, and these words, “Said Shimer agrees to become surety in like manner upon a new note extending said second note sixty days longer, amounting to $3,536,” were inserted in the deed of trust. Held, that the interpolation, whether made by consent of the parties or not, was immaterial, S. having already become such surety.</p> <p>2. Appellate Practice.</p> <p>Questions of fact which the trial court ref used to decide will not be considered on appeal.</p> <p>3. Trust Deeds—Evidence.</p> <p>The purpose for which a deed of trust was given must be found in the deed itself. Extrinsic evidence of some intention different from that expressed cannot be received.</p> <p>4. Same—Payment.</p> <p>A note secured by a deed of trust is not paid by the giving of another in lieu thereof. It is the debt which is secured, and, regardless of how many renewals there may have been of the original note, the security remains for the benefit of the owner of the debt.</p> <p>5. Same—Release.</p> <p>A release of a deed of trust given to secure the payment of a debt can be authorized only by the holder of the debt. Without such authority, a release by the trustee is void.</p>

<p> Appeal from the District Court of Chaffee County. </p>

<p>1. Evidence.</p> <p>A copy of a report by insurance agents of their daily business made to their principal is not admissible in evidence to corroborate'their testimony that they were without knowledge of other insurance on the property at the time they issued the policy sued on.</p> <p>2. Instbuctions.</p> <p>Instructions inapplicable to the case made by the evidence should not be given.</p> <p>3. Same.</p> <p>The giving of inconsistent instructions is erroneous.</p> <p>4. Same—Insubance.</p> <p>A policy of insurance was, without written application therefor, issued on inspection of the property by the insurance agents, who determined the amount of risk they were willing to take. The court below, in an action on the policy, instructed the jury that the assured was required to state fairly and fully the facts in regard to the risk, and that any fraudulent concealment of such facts or overvaluation would avoid the policy. Held, that while the instruction states the true rule wherever there was a written application, it ought not to have been given where no such application was made.</p> <p>5. Insubance—Conditions—Agent’s Knowledge.</p> <p>If, as a matter of fact, the agent of the insurer was fully advised as to the existence of other insurance on the property prior to the completion of the contract of insurance on which this action was brought, the fact that there was other insurance will not constitute a defense, —a condition in the contract that the policy should be void in case the assured had other insurance on the property to the contrary notwithstanding.</p> <p>6. Same—Contbact Construed.</p> <p>The policy contained a condition which -recited that it was a part of the consideration and basis of the rate of premium that the company should not be liable in an amount greater than three fourths of the cash value of the property described, or its pro rata proportion of the three fourths in case of other insurance. This clause followed: “ Total insurance permitted is hereby limited to three fourths of the cash value of the property herein described, and to be concurrent herewith.” Held, that it operated to express consent that the assured might carry other insurance on the property within the limitation stated.</p> <p>7. Same.</p> <p>Where there are two possible constructions of a contract, all doubtful provisions of insurance policies must be construed most favorably to the insured.</p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p>1. Statutoby Constbuction—Cities—Contbacts.</p> <p>The provision of the statute (Mills’ Ann. Stats., sec. 4449) that no contract shall be made nor expense be incurred by a city “unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided,” does not oporate as a limitation upon the power of a city to make a contract, such as the one in question, for furnishing the city with light for a period of twenty-five years. The different statutory provisions touching the power of the city in the premises are considered.</p> <p>2. Same.</p> <p>In construing a statute, reference must be had to the object to he attained and the means to be employed. It will not be presumed that the legislature attempted to authorize a proceeding unreasonable in itself.</p> <p>3. Same.</p> <p>The action of municipal corporations is to be held strictly within the limits prescribed by statute. Within these limits they are to be favored. Powers expressly granted or necessarily implied are not to be defeated or impaired by a stringent construction.</p> <p>4. Mandamus.</p> <p>The proper function of mandamus is merely to compel action and coerce the performance of a preexisting duty.</p>

<p>1. Water Bights.</p> <p>The right of a prior appropriate of water is in one sense absolute and in another qualified.</p> <p>2. Same.</p> <p>A prior appropriate of a part of the water of a stream for mining or milling purposes has no right to pollute the residue as by discharging tailings from a stamp mill into the channel, to the prejudice of lower subsequent appropriates.</p> <p>S. Same—Nuisance.</p> <p>The commission of a nuisance cannot be justified or excused on the ground that it would be more expensive to the wrongdoer to prevent the injury than it would be to the injured party to protect himself against it.</p>

<p> Error to the District Court of Conejos County. </p>

<p>1. ADMnnsTBATiosr—Allowance of Claims.</p> <p>A claim allowable against an estate by the county court as a court of probate is a debt of tlie decedent, or at least a claim against the decedent existing in liis lifetime which the claimant has a right to file against the estate and have paid out of the property which may have passed into the hands of the administrator.</p> <p>2. Same.</p> <p>An unliquidated claim growing out of a breach of a covenant of warranty committed by the heir is not allowable as a claim against the estate of the ancestor.</p>

<p>1. Evidence.</p> <p>Ordinarily, proof of an implied contract is not admissible when there is an allegation and proof of an express one. Yet when both parties agree as to an amount to be paid for services, but dispute with reference to the time which that sum was to pay for, proof of the reasonable value of the services rendered may be given as an aid to the court in determining what construction to put upon the negotiations of the parties and the true interpretation of their oral- contract.</p> <p>2. Agister’s Lien—Forfeiture—Statutory Construction.</p> <p>It is provided by General Statutes, sec. 1035 (Mills’ Ann. Stats., sec. 1514), that whenever the keeper of a public ranch uses or allows to he used, without the consent of the owner, any animal left with him to be ranched or fed, he shall forfeit to the owner all ranch or stable fees which may he due, and an additional sum for each day such animal shall have been used. Under this provision, which is applicable only to public agisters, a keeper who has used some of the animals intrusted to him may nevertheless retain a lien upon those not used.</p> <p>3. Same—Practice—Offer of Proof.</p> <p>A plaintiff in replevin, to recover animals from an agister, who desires to rely on the above-mentioned provision of the statute, is, under the circumstances of this case, bound to state the number of animals used, and to offer his proof for the definite purpose of reducing the amount of the lien which the defendant would be entitled to insist on.</p>

<p>Exceptions.</p> <p>An exception to tbe judgment is essential to obtain a review of tbe case upon tbe testimony.</p>

<p>1. Appellate Pbacticb—Adjudication op Wateb Rights.</p> <p>In determining what degree of certainty must exist in the evidence to substantiate a given fact, appellate courts must rely almost wholly upon the judgment and perception of nisi prius judges and the instruments they employ, whether jurors or referees.</p> <p>2. Same—Fact Case.</p> <p>The proof upon which a claimant is entitled to a decree in a statutory adjudication of priority to the use of water for irrigation is commented upon in this case, and the decree is affirmed upon the facts.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Replevin Bond—Liability oe Sureties.</p> <p>Plaintiff got possession of goods under a writ of replevin. Judgment as originally entered was in favor of the defendant for costs. Afterwards the defendant, without notice to the sureties on the replevin bond, moved for and obtained a judgment, mine pro tune, for the return of the property or its value at a sum found. Held, that the sureties on the bond must respond under the nune pro tune judgment.</p> <p>2. Same.</p> <p>Whenever sureties obligate themselves to the performance of an act which is dependent on judicial proceedings, the liability is assumed with reference to the power of the court to do any and all things within the scope of its authority which may be done in the ordinary and regular prosecution of the suit.</p> <p>3. Same—Pleadings and Evidence.</p> <p>The pleadings and proofs in this case are considered and held to be sufficient to put the defendants upon their proof if they desired to contest the execution and delivery of the replevin bond.</p>

<p>Civil Actions—Obdinanoes—Evidence—Judicial Notice.</p> <p>A prosecution to recover a penalty for the violation of a city ordinance is a civil action, subject to the rules governing civil suits. The existence of an ordinance cannot be judicially noticed at a trial on appeal, but must be proved by the prosecution as a part of its ease.</p>

<p>1. Constitutional Law—Obligation op Contracts—Attachments.</p> <p>The repeal of that part of the statute allowing an attachment on the ground that the action was on an overdue promissory note, even though it be taken to affect attachments levied, is not invalid because of conflict with the provision of the constitution prohibiting legislation impairing the obligation of contracts.</p> <p>2. Same—Retrospective Legislation.</p> <p>Whenever a statute takes away a right acquired under existing laws, creates a new obligation or imposes a new duty in respect to transactions already begun, it must be deemed retrospective, and prohibited by the constitution.</p> <p>3. Saving Clause—Statutory Construction.</p> <p>The act of 1891 (Session Laws, p. 366) operates as a saving clause in respect of subsequent enactments, so that the statute or part thereof repealed is to be treated and held as in force for the purposes of sustaining rights acquired thereunder. i. Same—Attachments.</p> <p>After an attachment had been issued and levied, the statute authorizing its issuance upon the ground that the action was on an overdue promissory note was repealed. Held, that notwithstanding the repeal of the statute, the attachment should have been sustained.</p>

<p> Appeal from, the District Court of Clear Creek County. </p>

<p> Appeal from the County Court of Otero County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Disceetion—Continuance—Review.</p> <p>Tlie granting or refusing of an application for a continuance is a matter wholly within the discretion of the trial court; and can be reviewed only when discretion has been abused. There was no abuse of discretion in denying the motion in this instance.</p> <p>2. Yabiance.</p> <p>A variance between the plaintiff’s pleading and proof which did not operate as a surprise to or injure the defendant, cannot be held to have affected his substantial rights, and is not available as error.</p> <p>3. Issues—Evidence.</p> <p>Defendant alleged in his cross complaint that plaintiff was indebted to him for work, etc., by him in making improvements on plaintiff’s land. The replication thereto was a general denial. Held, the plaintiff might show that the improvements were made and placed there: by other persons, that not being new matter.</p> <p>4. Appellate Pbactice—Instbuctions Reviewable, When.</p> <p>Unless it appears by the record that the instructions given were objected to at the time of the trial, they are not assignable as error..</p> <p>5. Motion fob New Tbiab—Jud&ment on Yebdict.</p> <p>The entry of judgment on the verdict does not prejudice a motion for a new trial made in apt time.</p> <p>6. Disceetion—Numbeb of Witnesses.</p> <p>It is within the discretion of the trial court to limit the number of witnesses who may be allowed to testify upon a given point.</p> <p>1. Pbactice—Subpeise—Waives.</p> <p>Objection on the ground of surprise is waived unless the party claiming to have been surprised calls the court’s attention to the matter at the time it occurs and asks for proper relief.</p> <p>8. New Tbiab—Nbwlt Discovebed Evidence.</p> <p>If it does not appear from the affidavits in support of a motion for new trial, on the ground of newly discovered evidence, that by the exercise of reasonable diligence such evidence could not have been produced at the trial, the showing is insufficient.</p>

<p> Appeal from the County Court of Otero Gounty. </p>

<p>1. Appellate Pbactice—Bill of Exceptions.</p> <p>Judgment against a city in an action to recover pay as a policeman for a year reversed because the bill of exceptions, which purported to contain all of the evidence, failed to show any proof which might possibly show the compensation to which the plaintiff may have been entitled, that the prerequisites of appointment had heen complied with, or action taken by the board which might establish a contract between the city and the plaintiff.</p> <p>2. Mbasube of Damages—Bubden of Pboof.</p> <p>The measure of damages for the breach of a contract of employment is, generally, the agreed wages for the term. Proof of the contract, the agreed compensation and the breach, makes out a prima facie case. It is then incumbent upon the defendant to mitigate the damages, if he can, by showing that the plaintiff has secured employment elsewhere, or that he might have done so by the exercise of reasonable diligence.</p>

<p>1. Statutory Constbuction.</p> <p>The intent of a statute is the law. General words may be restrained to it, and those of narrower import maybe expanded to effectuate the intent.</p> <p>2. Same—Salaby Act—Emoluments.</p> <p>The word “ emoluments,” as it appears in the salary act of 1891, is to be taken in a general and comprehensive sense, so as to embrace all proper receipts of the office not included within the terms “fees ” or “commissions,” as generally defined and understood. It does not include interest on county funds deposited in bank by the county treasurer.</p>

<p>1. Practice—Motion.</p> <p>If two causes of action be improperly joined in one count of the complaint, the remedy is by motion to separate the causes of action, and then by demurrer to the causes as separately stated, if insufficient; otherwise the objection is waived.</p> <p>2. Constitutional Law—Title of Act.</p> <p>An act entitled “ An Act to Provide for the Formation of Corporations,” may, without violating section 1, article 5, of the constitution, prescribe a penalty for failure by the officers of a corporation to comply with its provisions relating to the filing of annual statements of its affairs.</p> <p>3. Same.</p> <p>A failure to comply with the requirements of the statute in relation to the filing of annual reports (Mills’ Ann. Stats., sec. 491), makes the directors of the corporation who are guilty of such failure liable for the debts of the company contracted within the time limited by the act.</p>

<p> Appeal from the County Court, of Boulder County. </p>