intended to furnish to the party to be notified." The cases of Grand Rapids Electric Light & Power Company v. Fidelity & Casualty Company, 111 Mich. 148, 69 N. W. 249, and Anoka Lumber Company v. Fidelity & Casualty Company, 63 Minn. 286, 65 N. W. 353, 30 L. R. A. 689, are relied upon by plaintiffs. These cases present the question whether under the respective clauses there under consideration two notices were required, and whether one should be given immediately upon the occurrence of an accident, and another when claim for damages is made, or whether such conditions were complied with by deferring to give any notice until the claim for damages was made on account of the accident. Under the language of the policies there under consideration, it was held that the giving of notice upon claim being made for damages was sufficient. This rule, however, does not aid plaintiffs as they neither gave notice when the accident occurred, nor when the claim for damages was made. In Underwood Veneer Co. v. London Guarantee & Accident Co., Ltd., 100 Wis. 378, 75 N. W. 996, the identical form of policy here under consideration was considered, construed, and interpreted. The defendant in that case is the defendant in this. The policy was identical in terms and conditions with the one here under consideration. The decision in that case turned upon the construction of the same condition upon which this case rests. The party was injured August 24, 1895, and made claim for damages May 23, 1896. On the latter date the assured for the first time notified the insurance company. On June 8, 1896, the assured further notified the insurance company of the occurrence of the accident and of claim having been made for damages. September 7, 1896, the injured party brought suit against the assured and the latter tendered the defense to the insurance company, which it declined, and denied all liability. The case resulted in judgment in favor of the injured party and against the assured. The latter thereupon sued the insurance company upon its policy and recovered judgment, from which an appeal was prosecuted. The court at page 381 of 100 Wis., page 997 of 75 N. W., said: "After careful consideration, we are unequivocal requirements of the contract are that "upon the occurrence of an accident, and also upon receipt of notice of any claim on account of an accident, the assured shall give immediate notice in writing of such accident or claim with the fullest information available" to the defendant. These conditions are as much a part of the contract as any other portion thereof. The plaintiffs voluntarily entered into the contract, with these conditions therein, and thereby made themselves subject to such conditions. Their stipulation in regard to immediate notice was a condition with which they must comply in order to bring the defendant under its obligations. Their right to indemnity flowed from this instrument. It was an executory contract, and failure to comply with the conditions as to notice was a failure to complete the contract. We are not announcing the rule that under no circumstances could the written notice or notices be dispensed with, or the party assured be excused from giving the same. On the contrary, we think, where sufficient explanation of the failure to give the required notice appears in the record, the contract may nevertheless be enforced. The case of U. S. Casualty Company v. Hanson, 20 Colo. App. 393, 79 Pac. 176, is an example of this rule. Such a case, however, is entirely different from the one at bar. We confine our decision to the case presented in this record. Here the failure to give the required notice or notices during the period after the happening of the accident and the acquirement of knowledge, by plaintiffs of a claim for damages therefor, and the communication of such facts, even though verbally, to the defendant, is wholly unexplained. We are of the opinion that by the language of the contract an immediate notice of the accident and also notice of claim for damages as stipulated for are conditions precedent to the liability of the defendant, and without such notice or notices, or a legal excuse for the failure to give the same, the defendant cannot be held. In the case of L. G. & A. Co., Ltd., v. Siwy, 35 Ind. App. 340, 66 N. E. 481, the identical form of policy here in suit came under review, and it was there held that the requirement in the policy that the assured give immediate notice in writing of any claim on account of an accident is a condition prece-constrained to hold that the conditions indent to the insurance company's liability, and the failure to give it immediately works a forfeiture of the policy. Of course, the requirement of immediate notice will be construed with reference to the circumstances of the case. The word "immediate" qualifying the word "notice" must necessarily be given a reasonable construction having regard to the circumstances of the particular case. It mea: within a reasonable time. "It forbids intentional and needless delay, but it does not bind the person who is to give notice to act upon the instant, nor without taking reasonable time to Such dorsed upon the policy, and quoted above, the policy. Accordingly the plaintiff was thereby expressly precluded from settling any claim or incurring any expense without the consent of the defendant, except in case of absolute necessity. These things made it important for the defendant to be notified immediately, not only of the occurrence of the accident, but also that a claim for damages had been made by the injured person on account of the accident. The words 'and also,' in the conditions quoted, pretty clearly indicate that such notice of 'the occurrence of the accident' was to be followed by a further or additional notice of any claim made for damages, and each such notice was to be given immediately as therein required. In the two cases relied upon by counsel for the plaintiff the condition did not contain the word 'also,' and in that respect the cases are distinguished from the one at bar. Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 65 N. W. 353, 30 L. R. A. 689; Grand Rapids E. L. & P. Co. v. Fidelity & Casualty Co., 111 Mich. 148, 69 N. W. 249. Certainly we cannot hold under the conditions in this policy that the notice of the claim for damages, made for the first time nine months after the accident, satisfied the requirement that immediate notice should be given of 'the occurrence of the accident,' nor can we hold that such requirement was not a condition precedent, nor can we hold that such notice of the accident, given, for the first time, nine months after the occurrence of the accident, was an 'immediate notice,' within the condition quoted, as those words have been repeatedly construed by this court. Kentzler v. Association, 88 Wis. 589, 60 N. W. 1002, 43 Am. St. Rep. 934. True, there is no forfeiture clause in the contract. Nevertheless the plaintiff, in order to maintain this action, was bound to perform such condition precedent." The contention of plaintiffs that defendant waived the notice or notices required has no merit. The plaintiffs in their complaint specifically charge that they "on the occurrence of said accident gave notice in writing with full particulars of said accident to the local agent of the defendant at Denver, and that afterwards, when the claim was made for damages on account of said accident, they gave a like notice with full particulars to the said local agent of the said defendant at Denver." These are direct and positive averments of specific compliance with the requirements of the conditions precedent set forth in the policy. Nothing is averred relative to a waiver. The plaintiffs relied specifically upon a strict compliance with the terms and conditions of the policy. The defendant interposed a general denial of all the material allegations of the complaint and an affirmative defense based upon the conditions of the policy, and alleged that no notice had ever been served. The plaintiffs failed to reply to the affirmative defense, or at all. Inasmuch as there is no pleading raising the question of waiver in this case, the question is not here for review. When a complaint upon a written contract alleges specific performance of the conditions and obligations on the part of the plaintif, there can be no recovery upon an alleged waiver not plead. Mohney v. Reed, 40 Mo. App. 99, 109; McCoy v. Iowa Co., 107 Iowa, 80, 77 N. W. 529. In Isabella Company v. Glenn, 37 Colo. 165, 169, 86 Pac. 349, 350, in speaking of the question of waiver, we said: "Whether it be a waiver or a release, and whatever be its true meaning, if defendant wished to rely upon it, it should have been specially pleaded, but it was not." Furthermore, there is absolutely no evidence upon which a claim of waiver can properly be based. Assuming that Mr. Daly and the attorneys securing the statements relative to the accident could bind the defendant, we are wholly unable to discover in their acts or conduct any intention to waive or any waiver of the breach of the stipulation for immediate written notice of the accident and claim for damages. Rooney v. Maryland Casualty Co., 184 Mass. 26, 67 N. E. 882. We find no reversible error in the record here presented, and the judgment is therefore affirmed. Judgment affirmed. STEELE, C. J., and BAILEY, J., concur. DIEZ V. HARTBAUER. (Supreme Court of Colorado. Dec. 6, 1909.) 1. WATERS AND WATER COURSES (§ 145*)-IRRIGATION APPROPRIATION - RIGHTS ACQUIRED. An appropriator of water for irrigation may not change the point of diversion, the character or place of use, or enlarge the same to the injury of other appropriators, but, with this qualification, the right to do so is a vested property right, which attaches to the appropriation, and may be made at the will of the appropriator. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 145.*] 2. WATERS AND WATER COURSES (§ 145*)-IRRIGATION-DECREE OF PRIORITY-USE OF THE of diversion, requiring compliance with the stat- | for that portion of his tract of land which utory provisions, since the flume was a mere lateral ditch. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 145.*] Appeal from District Court, Custer County; Morton S. Bailey, Judge. Suit by Fred Diez against Gerhardt Hartbauer. From a judgment dismissing the action, complainant appeals. Affirmed. lies on the north, but as well for that on the south, side of the stream. There is no pro vision or clause in that subdivision of the general statutory decree, another subdivision of which defines plaintiff's rights, which limits the appropriation to any particular portion of the entire tract which defendant at the time owned. It is in evidence that from time to time, after the appropriation J. G. Schweigert and Edwin H. Park, for was made, defendant used it indiscriminately appellant. John R. Smith, for appellee. upon his land on both sides of the creek. During the last few years immediately preceding the beginning of this action it has been used chiefly, if not altogether, upon the lands south of the stream, because, from the irrigation of lands higher up and from natural causes, defendant's land on the north side received from seepage and other sources enough water without spreading upon it the water covered by his appropriation direct from the stream. This he had the right to do. Plaintiff did not succeed, at least to the satisfaction of the trial court, in proving that defendant used this appropriation first upon the land on the north, and afterwards, and during the same season, upon an additional and equal acreage on the south, side. Neither did he show that at any time defendant diverted from the common source of supply any greater quantity than that covered by his decree. ered by his decree. In other words, there is no showing that defendant exceeded, either in volume or in time, his decreed ap CAMPBELL, J. The object of the action was to prevent defendant from diverting and using on his agricultural lands the waters of a natural stream, to the injury, as is said, of plaintiff's vested rights thereto. The parties own lands adjacent to Colony creek in Custer county, and have obtained decreed priorities of right to the use of the waters thereof for irrigating the same; defendant's right being superior to that of plaintiff. Each of them owns subsequent appropriations which are not material to the pending controversy. Part of defendant's tract lies on the north, and part on the south, side of the stream. It is the claim of plaintiff, which he attempted, but failed, to prove, that defendant, after he had, with his decreed priority, irrigated his land upon the north side of the stream, afterwards, and during the same season, irrigated the land on the south side. In other words, that he attempted to make the same appropriation of water do double duty during the same irrigating sea-propriation. There is testimony that during son, which this court in Ft. Lyon Canal Co. v. Chew, 33 Colo. 392, 81 Pac. 37, said could not be done. Plaintiff also invokes the familiar rules that an appropriator of water for irrigation may not change the place of use, the point of diversion, the character of the use, or make an enlarged use of his original appropriation, to the prejudice of the rights of other appropriators from the same source of supply after their rights have attached. The difficulty with plaintiff's case is that the evidence does not bring it within any of the rules enunciated in the cases to which he refers and on which he relies. We have carefully read the evidence, and agree with the conclusion reached by the trial court, that plaintiff entirely failed to make out the case stated in the complaint. It is, of course, well established with us that an appropriator of water for irrigation may not change the point of diversion, the character, or place, of use, or enlarge the same to the injury of other appropriators; but, with this qualification, the right to do so is a vested property right which attaches to the appropriation, and may be made at the will of the appropriator. As we read the record, it is not in serious dispute, but, if so, all issues have been resolved in his favor, that defendant's appropriation was made, not merely these later years, and after defendant ceas ed to use his decreed appropriation in irrigating lands on the north side of the stream, plaintiff has not been able at all times to obtain the full volume of his decreed priority; but the showing is entirely lacking that such failure is due to any wrongful act of defendant. Indeed, the trial court was justified in finding that, instead of injury resulting to plaintiff from defendant's irrigation of lands on the south side, his lands were benefited by the seepage and return water after it left defendant's lands, which they would not have received had defendant's irrigation been confined to his land on the north side. Notwithstanding the insistence of plaintiff in his argument, we have not before us a case where defendant is attempting to use a greater volume of water, or to use a rightful volume for a longer time than he is entitled to, or where he is wasting water or using it when he has no need of it. Neither is there any merit in plaintiff's claim that defendant has without complying with our statute changed the point of diversion of his ditch. In irrigating his land on the south side of the stream defendant takes the water from the stream through the original headgate of his ditch, the same as when he irrigated the lands on the north side. The building of a flume across the stream, and connecting it with the main ditch at a point below its headgate, amount to nothing more below its headgate, amount to nothing more than building a lateral ditch from the main ditch for convenience in irrigating different parts of the tract of land for which the ap-lected it by selling the certificate of sale issued propriation was made. In reaching our conclusion, we are not to be understood, of course, as passing upon any conflicting rights which are not here involved. And, if hereafter defendant should make such change in the place of the use of the water, or enlarge his appropriation either in volume or time, nothing determined in this case would preclude plaintiff from obtaining the appropriate relief, if he should be entitled to any. The record abundantly justifies the findings of fact which the trial court made in de fendant's favor. Defendant has not exceeded his lawful rights. Plaintiff has not been injured. The judgment, based on such findings, dismissing the action, is therefore affirmed. of against his principals for the amount he would have received under the contract had he been permitted to collect the judgment, the complaint alleged that plaintiff would have collected the judgment except for defendants' wrongful acts, but defendants were not informed by pleador otherwise that plaintiff would have colupon the sale upon execution of the judgment debtor's property until plaintiff testified that a third person would have purchased the certificate from him had defendants not sold it. After trial and judgment for plaintiff defendants obtained such third person's affidavit to the effect that he would not have purchased the certificate from plaintiff. Held, that a new trial should have been granted on the ground of newly discovered evidence. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 203, 204; Dec. Dig. § 100.*] Appeal from District Court, City and County of Denver; P. L. Palmer, Judge. Action by W. W. Hessey against O. W. Lowell and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded. Fred Herrington and E. M. Sabin, for appellants. Louis Wagner and M. B. Carpen STEELE, C. J., and MUSSER, J., concur. ter, for appellee. LOWELL et al. v. HESSEY. (Supreme Court of Colorado. Nov. 1, 1909. Rehearing Denied Dec. 6, 1909.) 1. PRINCIPAL AND AGENT (§ 34*) - AGENCY COUPLED WITH INTEREST-REVOCATION. Plaintiff's agency under a contract, whereby he was authorized by judgment creditors to collect the judgment for fifty per cent. thereof as compensation, was not coupled with an interest; and hence was revocable at the will of the judgment creditors. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 55; Dec. Dig. § 34.*] 2. PRINCIPAL AND AGENT (§ 36*)-REVOCATION OF AGENCY-TRANSFER OF SUBJECT-MATTER. An assignment by a judgment creditor of a certificate of sale of the judgment debtor's property upon execution revoked plaintiff's agency under a contract with the judgment creditor to collect the judgment. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 58; Dec. Dig. § 36.*] 3. PRINCIPAL AND AGENT (§ 89*)-COMPENSATION CONTRACT-ACTIONS FOR BREACHPROOF. In an action by an agent for the collection of a judgment in consideration of one-half thereof against his principals for the amount he would have received had he been permitted to collect the judgment, where plaintiff's theory was that, after the sale of the debtor's property upon execution, he offered to pay the judgment creditors their part of the judgment and depend for compensation upon the sale of the certificate of sale for which he had found a purchaser, plaintiff must show that the judgment creditors would have received their part of the judgment from him, and that he would have sold the certificate for its face value. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 235; Dec. Dig. § 89.*] 4. NEW TRIAL_(§ 100*)-GROUNDS-NEWLY DISCOVERED EVIDENCE. In an action by an agent for the collection of a judgment in consideration of one-half there MUSSER, J. On December 27, 1899, one Bailey recovered a judgment in the district court of Clear Creek county for $1,495.93 and costs and $150 attorney's fees. Eighteen or nineteen creditors of the judgment debtor were interested in this judgment, among whom was the appellant Lowell, whose interest was small. The appellant Sabin was the attorney for Bailey and the other creditors, and had an interest in the judgment for attorney's fees. On April 7, 1903, Bailey, Lowell, Sabin, and the appellee Hessey entered into a written contract, whereby Hessey was appointed as the agent of the other three for the collection of the judgment. It was agreed that Hessey should have all over 50 per cent. of the judgment, exclusive of interest, as his compensation for collecting the same, provided it was collected or safely secured within one year. Hessey agreed to at once initiate such proceedings to collect the judgment as in his opinion would result in securing or collecting it. Hessey was authorized to receipt in full for the judgment and to retain 50 per cent. thereof, exclusive of interest. The assets of the judgment debtor consisted of mining claims upon which there was, or had been, a prior lien of about $15,000. With this lien unsatisfied, the Bailey judgment was worthless. Hessey claims that in April he knew or had information that this lien was in fact satisfied, and endeavored to purchase the Bailey judgment for $500, which he was unable to do. He continued negotiating with Mr. Lowell for the judgment, and finally, in June, the contract of agency was entered into and dated April 7th. Hessey says that, before it was signed, he went to Kansas City, the headquarters of the judg ment debtor, to satisfy himself that the prior lien was discharged. He says he so satisfied himself. Whether the prior lien had in fact been discharged is left to conjecture. Inasmuch as his efforts to collect the judgment, after the execution sale hereinafter mentioned, were confined only to an attempt to assign the certificate of sale to third parties, it is to be inferred Hessey's information was wrong, and that the prior lien still existed. In any event, Hessey did not at any time inform Bailey, Lowell or Sabin, or cause them to be informed, that he had information that the prior lien had been satisfied until after he had procured from them the written contract. On June 24th Hessey caused an execution to issue upon the judgment, and on August 19th the mining claims of the judgment debtor were sold under this execution. None of the defendants were present. Hessey's agent bid in the property for the full amount of the judgment, and caused a certificate of sale to be made to Bailey, and the execution was returned satisfied. What became of this certificate is not clear, although it appears that it remained in Bailey's name and he probably had it. On March 10, 1904, Bailey and Lowell were requested, on behalf of Hessey, to forward the assignment of the judgment and sheriff's certificate of sale to the Denver National Bank to be turned over to Hessey upon payment of 50 per cent. of the judgment, as he was about ready to pay that amount. On April 1st a letter, on Hessey's behalf, was sent to Sabin, telling him to forward an assignment of the judgment and the certificate to the bank, to be turned over to Hessey, upon payment of the amount due on Hessey's contract, and that Hessey was ready to pay the money and close the matter. This was the first and only notice which the record shows that Sabin and Lowell ever received that Hessey was ready to turn over any money to them. In the latter part of December, 1903, Bailey assigned the certificate to one Kerr for $1,000. This money was deposited in a bank to Sabin's credit, with instructions to pay it to those interested in the judgment, which was done. Hessey brought this action against Bailey, Lowell, and Sabin to recover the amount which he would have received had he collected the judgment, alleging, in substance, that during the year, and while the contract of agency was in effect, through his efforts the judgment would have been collected had the defendants not prevented it. Hessey recovered judgment, and from this Lowell and Sabin have appealed. It is true, as appellants contend, that the contract of agency was not coupled with an interest in the judgment in Hessey, and that the contract was therefore revocable at any time by the defendants. This rule is laid down in Mechem on Agency, § 204 et seq., and is supported by the authorities. It is also probably true, as the appellee contends, agency without becoming liable to Hessey for labor and money reasonably and necessarily expended by him in the furtherance of his agency prior to the revocation. This, however, is an action to recover the full compensation due on the contract, as though performed by the agent and unrevoked, and is not an action to recover for money and labor expended as aforesaid. It is also true that the assignment of the certificate to Kerr amounted to a revocation of the authority of Hessey, so far as the defendants were concerned, but it is said in Mechem on Agency, § 223, that, in order to render the revocation effectual, notice of it must be given to the agent. It is gathered from the record that on April 2, 1904, Sabin, from Idaho Springs, in response to the letter of April 1st from Hessey's attorney, requesting the forwarding of the assignments to the bank, wrote to the attorney at Denver that the certificate had been disposed of some time before. This is the first the attorney knew of the assignment, and Hessey testified that he did not know of it at that time. The attorney notified Hessey at Kansas City of Sabin's letter. sas City of Sabin's letter. It does not appear how soon the attorney wrote to Hessey. In any event, Hessey could not have received a letter from his attorney until about the close of the year of the contract on April 7th. It is also to be gathered from the record that what was done by Hessey toward collecting the judgment was all that could have been accomplished by him during the year had Bailey not assigned the certificate to any one. The theory of the plaintiff, as conveyed to us by his evidence, seems to be that he claims that while the contract was in effect he was ready and offered to pay to Lowell and Sabin the amount coming to them on the judgment, and that he depended for his compensation upon his ability to sell the certificate, and he claims he had found a purchaser therefor, so that he would have received his full compensation. Two things are necessary to sustain this theory. It must, first, appear that Lowell and Sabin would have received their part from Hessey; and, second, that Hessey would have sold the certificate for its face value, for under his theory he could not realize any money from it without selling it. Whether or not this theory conforms to the allegations of the complaint or is a fulfillment, if sustained, of the contract of agency, is not determined, because not discussed in the briefs. We do not determine the sufficiency of the evidence introduced by plaintiff to prove that he had sufficient money to pay the defendants what they were entitled to and to take up the certificate, nor that he offered and was ready and willing to pay them this money, nor the duty of the defendants to comply with his requests to forward the assignments, nor the sufficiency of the evidence introduced by plaintiff to prove · that he had found a purchaser for the certificate, nor the effect, if proven, of either |
