question as to whether an action for specific performance will lie in cases like this, and we cite, as placing the question beyond dispute: Brown V. Lapham, 22 Colo. 264, 44 Pac. 504; Kennedy V. Hazelton, 128 U. S. 667, 9 Sup. Ct. 202, 32 L. Ed. 576; Pomeroy on Specific Performance, §§ 465–475. On the second question, that of the propriety of the alternative damage judgment entered in the court below, it is clear that, if Starbird was and is SO liable, it must be on the ground that his title to the “bought water” failed. In order therefore to recover on this theory, the fact that Such failure did Occur must first be established, else there was no breach of the covenant of Warranty. The fact that such title did fail could not be finally and Conclusively determined, so as to be binding upon all parties in interest, except in a Suit to which the ditch company was a party. Indeed, no attempt was made to show Such failure of title. On the contrary, the trial court found, as a fact, which is not binding on the company, that Starbird is Seised and poSSessed of this title. If, however, it Was Competent at all in this action to render an alternative damage judgment against Starbird, under the pleadings and in view of the court's findings, then the measure of damage would be the Value of the “bought Water,” and, until it is established by competent proof that such water is not obtainable, no other measure of damage than its value was competent. No attempt was even made to show that no “bought water” could be secured. Hence no other measure of damage for the breach of contract complained of could be entertained. Yet the court, evidently impelled by the notion that the land without water was Worthless, not a syllable of proof however having been offered to that effect, assessed the damages for the supposed diminution in Value of the property, on the basis of the price paid per acre for the entire 20-acre tract. No word of testimony is found in the record to Support such finding, except the bare statement of appellee's husband that, “In his opinion the land Would be Worthless Without Water.” The record shows that, of the 20 acres originally bought by appellee, she had sold and conveyed away 10 acres thereof with the one share of ditch stock. It may well be that the Value of the 10 acres sold was greatly in excess of that of the 10 acres retained, and, if so, then to allow damages for the remaining 10 acres on the basis of $150 per acre, the rate at which the Whole tract was purchased, is clearly Wrong. There is nothing to show what the fact is in this respect. The court must have assumed, for there is no testimony on this point, One Way or the other, that the land was all of equal Value. Such assumption is clearly not warranted for the purpose of basing upon it a judgment in damages. The alternative judgment is unsupported by any testimony, and is not warranted,

as matter of law, as the record and proof noW Stand, on any theory.

The judgment and decree is therefore Wrong in both respects. If Starbird had title to the “bought water,” as the trial court found, then specific performance could not be decreed, for he had fully performed by conveying it. The Wrong for failure to deliver the “bought Water,” under Such circumstances, was the wrong of the ditch company. On the other hand, if, as a fact, Starbird attempted to convey what he did not have, then, before he could be mulct in damage, such failure of title should be Satisfactorily established, and this Was not dOne. Beside, to reach the reSult shown by the alternative money judgment Obviously the correct measure of damage was not applied. The value of the “bought water” is the true measure, in the first inStance, and, in any event, there is no competent testimony whatever to establish and support any such damages as were allowed.

The judgment and decree should be reversed, and the cause remanded. It is SO Ordered.

Judgment reversed.

STEELE, C. J., and WHITE, J., concur.

MAHLER v. BEISHLINE. (Supreme Court of Colorado. Dec. 6, 1909.)

1. APPEAL AND ERROR (§ 1050*)—HARMLESS ERROR—ADMISSION OF EVIDENCE. The admission of improper evidence over objection is harmless where the same evidence was introduced at another time without objection. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4151-4160; Dec. Dig. § 1050.*]

2. EVIDENCE (§ 135*)—SIMILAR FACTs—SHOWING FRAUD. In an action to recover property transferred to a religious sect on its representations, made by the leaders of the sect, that they could cure plaintiff, which representations she alleges were fraudulent and made for the purpose of obtaining her property and inducing her to enter one of the homes of the sect, testimony of several other members as to their experiences as members of the homes conducted by the sect and also as to attempts to obtain their property was inadmissible. [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 393; Dec. Dig. § 135.*]

3. APPEAL AND ERROR (§ 1053*)—HARMLESS ERROR—ADMISSION OF EVIDENCE—CURE BY INSTRUCTIONS. In an action to recover property transferred to a religious sect through fraudulent representations, the error in admitting evidence of other members of the sect as to their experience with the sect is cured by cautionary instructions to the jury and the subsequent exclusion of the most objectionable part of the testimony, and final instructions not to consider the religious doctrines of the order in determining the conflicting property rights. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 41.80; Dec. Dig. § 1053;* Trial, Cent. Dig. § 977.]

4. TRIAL (§ 260*)—INSTRUCTIONS—REQUESTs— INSTRUCTIONS ALREADY GIVEN. It is not error for the court in an action to recover property transferred to a religious sect to refuse instructions, which, so far as they are pertinent, are embodied in those given by the court of its own motion. [Ed. Note.—For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 2G0.*] Appeal from El Paso County Court; Robert Kerr, Judge. Action by R. A. Beishline against Henry Mahler. From a judgment for plaintiff, defendant appeals. . Affirmed.

Frank J. Baker and P. M. Kistler, for appellant.

CAMPBELL, J. This is an action for the recovery of possession of personal property Which plaintiff Says Was Obtained from her through the fraudulent conduct of an unincorporated body of men having a corps of Officers Of Which defendant is the local representative. The case originated before a justice of the peace, and therefore there are no Written pleadings. Upon the trial of the appeal in the county Court plaintiff had judgment, and defendant appeals. This court has not jurisdiction of the appeal, and it must, therefore, be dismissed, but, aS required by our statute, the case will be redocketed and disposed of as pending on a Writ Of error.

The legal questions involved arise out of an unusual State of facts. In summarizing them it is not to be inferred that there is no Conflict in the evidence. There is evidence, however, tending to establish the facts which we proceed to narrate: An alleged religious sect or order, “The Williamites,” so called from Henry T. Williams, the name of its founder, has in different places in this and Other States homes Where its adherents live as members of one family and carry on VariOus kinds of business in the name, and under the absolute control and direction, of its founder, who is still living. One of its doctrines Or beliefs is that all diseases of mankind can be cured without medicine, by prayer or intercession alone. Into one of these homes near Colorado Springs, in this state, the plaintiff, a woman 45 years old and afflicted with a grievous malady, was admitted apparently at her own request, but which was made, as she says, after previous frequent inducing interviews between her and the local manager. AS a result Of repeated conversations, she became a believer in the sect and especially in divine healing, and had implicit confidence in its Officers. It seems that these people teach their followers that an essential condition precedent to a cure is the consecration of their persons and all their worldly possessions to the Lord, and Submission of themselves absolutely to the orders of the officers. When plaintiff Was admitted to this home, she consent

ed that some of her property that she then had in her possession and which is in controVersy here be taken along with her, and afterwards, when she was not cured of her malady and was told by the manager of the home that it was because her consecration had not been complete and perfect, she gave up all of her remaining property, notwithStanding Which the promised cure was not effected. After she had been in the home for more than two years working in co-operation with other members in carrying on the business there conducted, she became dissatisfied, not only because she was not cured, but because her property, as she Claims, Was not consecrated to the Lord, but Was diverted from that purpose for which it was designed, and held under claim of priVate OWIlership by the head of the Order for his OWn Sole use and benefit. She left the home, and, after demanding possession of her property without success, brought this action to recover it. The defendant in Whose possession it was as local manager of one of the homes is treated by the parties as the representative Of the Sect and as authorized to defend in its behalf. Defendant has made two principal assignments of error: One, that the court Wrongfully refused his motion for a nonsuit at the close of plaintiff’s case; and likewise erred in not directing a Verdict for him after his own evidence was in. The specific rulings objected to may be grouped under three principal heads: First, rulings upon evidence; Second, refusal of instructions asked by defendant, and giving of instructions by the court of its own motion; third, to the legal Sufficiency of the evidence to support the judgment. As we gather from the record, the plaintiff’s theory is that by the knowingly false and fraudulent Conduct and Statements of the officers of the church concerning their existing power to cure her of her disease, Which She then believed to be true and On which she relied, and because she thought She was consecrating her property to the Lord, She Consented that it should be taken to the home into which she was admitted, to Which absolute title was afterwards asserted by the head of the Sect, and that this entire Scheme Of S0-called Consecration Was but a Subterfuge or artifice practiced upon her, a devout believer, to enable the head Of the order to get title in his own name and possession of all her property. The defendant's position is that the plaintiff voluntarily made a complete, executed gift of the property to the head of the order, which was required as a condition of membership, and as some compensation for the comfort and privileges Of the COmmOn home, and that no fraud was practiced by them upon her in procuring the gift. In this character of action, where it is grounded upon Such acts of fraud, the evidence may legitimately take a very wide range. We are impressed, however, after a painstaking reading of the record, that Some evidence in behalf of plaintiff was admitted that Should have been excluded. At the same time we are firmly convinced that its reception was not prejudicial to defendant, but, on the contrary, there is an affirmative showing that no prejudice could have resulted. Many questions of plaintiff's counsel that were objected to and to which answers Were given were asked and answers given elsewhere in the record without any objection at all. Still other evidence, which We think Ought not to have been admitted, Was produced by plaintiff without any effort whatever upon the part of defendant to keep it out. The court should not have permitted so wide a latitude to plaintiff in introducing evidence as to the religious beliefs and doctrines and practices of the alleged religious order, particularly the testimony of Several other of its members from this and other States touching their experiences as members of these homes and with respect to attempts, fraudulent as it Was Said, to obtain their property. But the court, We think, under its caution to the jury during the trial and its subsequent exclusion of the most objectionable part of this testimony, and its final instruction to the jury not to consider the religious doctrines of the Order in determining the conflicting property rights, cured the error. Our conclusion upon this branch of the case is fortified by uncontradicted testimony of plaintiff and of admissions by defendant, and particularly of his witness Morrow, who manages the business and property in the absence of the Supreme head. This evidence, if believed by the jury, sustains their findings, and upholds the judgment which the court entered upon them. The instructions tendered by defendant and refused by the court were, in so far as pertinent, embodied in those given by the court of its own motion. Only three of the court's instructions are criticised, and our examination of them Satisfies us that they unquestionably state correct legal propositions on the law of the case, and are based upon competent evidence. The same observation may also be indulged on this branch of the case as Was made in discussing the rulings On evidence. It is doubtful if defendant’s objections were properly taken and exceptions preserved to these instructionS SO as to enable him to be heard upon them; but, if our practice in these respects was followed, no error in the instructions has been pointed out. The most important assignment is that relating to the sufficiency of the evidence. Defendant says that the fraud relied upon by plaintiff was not as to any past or present acts or conduct, but only with respect to future promises, and that such fraud is not a ground for equitable relief. The court so

charged the jury, and told them that the plaintiff must, among other things, show that the fraud upon which she counted was with reference to past or present matters. The defendant is mistaken in Supposing that plaintiff did not rely upon past or present acts of fraud. In effect, she claimed in her testimony that the officers of the sect, whom defendant represents, practiced upon her, when She was greatly distressed in mind as a reSult of her grievous disease, gross fraud with respect to their existing power or ability, residing either in themselves or subject and responsive to their call from the Almighty, to cure her of the disease, and by such fraud they induced her to put her property into their possession with the understanding on her part that it was being consecrated to the Lord : Whereas, as she claims, their entire efforts and conduct were nothing more than a fraudulent scheme practiced upon her to enable the head of the order to get title to her property for his sole use and benefit, instead of devoting it to the use to which she Supposed she was consecrating it. We are not prepared to say that if there was testimony tending to support these charges, as there Was, she was not entitled to recover, even though there was conflicting evidence. We find no prejudicial error in the court's instructions, or in its rulings on evidence, as We have already stated; and if the jury believed, as evidently they did, the testimony of plaintiff and her Witnesses, she was entitled to recover her property, because, in that event, she parted with its possession without a good or valuable consideration, but as a result of flagrant fraud practiced upon her. The judgment is therefore affirmed.

STEELE, C. J., and MUSSER, J., concur.


(Supreme Court of Colorado. Oct. 4, 1909. Rehearing Denied Dec. 6, 1909.)

1. PRINCIPAL AND AGENT (§ 189*)—UNDIsCLOSED PRINCIPAL – ACTION – COMPLAINTSUFFICIENCY. A complaint alleging an agreement between defendants, B. and M., that the latter should act as B.'s agent to purchase hay in his name, and to turn it over to B. ; that all hay consigned to M. on commission should also be delivered to B. to be handled in the same way; that M. should not disclose to the sellers that he was acting as B.'s agent, but should represent that he was acting on his own account; that as such agent M. received from plaintiff hay for which he agreed to pay a stated price; that B. was the real purchaser; and that defendants failed to pay plaintiff for the hay, sufficiently alleged, as against a general demurrer, a cause of action, against , an undisclosed principal through dealings with his agent.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 713; Dec. Dig. § 189.*]

2. PRINCIPAL AND AGENT (§§ 23, 123*) — AGENCY – PROOF – CIRCUMSTANTIAL EVIDENCE. An agency, as well as the extent of the agent's authority, may be proved by circumstantial evidence. [Ed Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 41, 420–429; Dec. Dig. §§ 23, 123.*] 3. PRINCIPAL AND AGENT (§ 190*)—EVIDENCE. In an action against an undisclosed principal through dealings with his agent, where the evidence was sufficient to go to the jury on the question of the agency, letters of the alleged agent to plaintiff, authorizing shipments of goods by plaintiff and other transactions between the parties, were competent to show that purchases were made by defendant of plaintiff. [Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 190.*] 4. TRIAL (§ 59*)—ORDER OF PROOF—DISCRETION OF TRIAL COURT. The order of proof and other such matters are largely within the discretion of the trial court. [Ed. Note.—For other cases, see Trial, Cent. Dig. § 139; Dec. Dig. $ 59.*] 5. PARTIES (§ 92*)—MISJOINDER OF PARTIESWAIVER, The objection that there was a misjoinder of parties defendants was waived by being raised too late when made for the first time on motion in arrest of judgment. Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 150, 152; Dec. Dig. § 92.*] 6. PARTIES ($ 75*) – DEFECT of PARTIES – WAIVER, A defect of parties is waived if not raised either by demurrer or answer. [Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 115–116; Dec. Dig. $ 75.*] 7. PRINCIPAL AND AGENT (§ 145*) – UNDIsCLOSED PRINCIPAL-ACTION.—LACHES. Where the evidence supported a finding that in making purchases from plaintiff one M. acted as agent for defendant, his undisclosed principal, it was immaterial whether plaintiff knew, or by reasonable diligence could have known, of the agent's financial irresponsibility. [Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 145.*]

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be turned Over to Burnoll On Same terms and conditions as purchased by McCreery; that all hay consigned to McCreery on commission Should likewise be delivered to Burnell to be handled in the same manner; that McCreery should not disclose the fact to parties Selling the hay that he was acting as agent for Burnell, but should represent that he was acting on his own account or on account of L. M. McCreery & Co. (which was L. M. McCreery). It further states: That as such agent McCreery received from plaintiff on consignment two cars of hay containing a Certain amount, which cars were immediately turned over to Burnell, pursuant to said agreement; that afterwards, between the 18th and 24th of January, 1906, McCreery purchased 12 cars of hay from plaintiff containing a certain number of pounds for which they agreed to pay plaintiff $6.50 per ton, f. O. b. at Bayard, Neb.; that Said CarS Were immediately shipped to Denver, where upon their arrival they were turned over to defendant Burnell, pursuant to said agreement; that Burnell was the real purchaser of said cars of hay and the real consignee of the other two CarS SO consigned to McCreery; that, after paying all commission and charges on the cars consigned, plaintiff ought to have realized therefor the Sum of $6.50 per tom; that defendants have failed and neglected to pay plaintiff the amount received for said consigned cars, or any part thereof, and have failed to pay for the cars so purchased; that there is due and payable to plaintiff from defendants for Said hay SO consigned and Sold the Sum of $930.39, etc. There Was no appearance by defendant L. M. McCreery, or L. M. McCreery & Co. The defendant Burnell filed a separate anSWer, in Which he denied all the allegations in the second count of the complaint. First. It is contended that the Court erred: (a) In denying the defendant's motion for judgment upon the pleadings; (b) in overruling the objections of the appellant, Burnell, to the introduction of any evidence in support of the second cause of action; (c) in refusing to grant a nonSuit. These contentions are not well taken. The Second count in the amended complaint (as against a general demurrer) Sufficiently alleges a cause of action against an undisclosed principal through dealings with his agent. When considered as a whole, including all the circumstances shown Surrounding the parties, we think that there is evidence upon which this finding can be based; and, although it might be more satisfactory, yet, taking into consideration the position of the defendants and the next to impossibility to establish the fact by direct proof, the verdict of the jury should not be disturbed upon this ground. The motion for nonsuit was properly overruled. An agency may be proved, as well as the extent of the authority of the agent, by circumstantial evidence. Union Gold Mining Co. v. Rocky Mountain Nat. Bank, 2 Colo. 565; Higgins et al. V. Armstrong, 9 Colo. 38, 10 Pac. 232; Gambrill et al. v. Brown Hotel Company, 11 Colo. App. 529, 54 Pac. 1025. Second. Complaint is made to the introduction of the letters of McCreery to the appellee in evidence, on the ground that there was no evidence to establish the agency, and that agency cannot be established by the declaration of an alleged agent, and that it was erroneous to admit in evidence the declarations of an alleged agent unless his agency has been otherwise established. The McCreery letters do not admit the agency, nor make any Statements regarding it, and they cannot be construed as declarations Of his in any manner tending to establish it. We think the evidence, as a whole, was sufficient to go to the jury upon the question of the agency. Such being the case, his letters, which authorized the shipments and other transactions between the parties, were competent to show the purchases were made. The order of proof and other such matters are largely within the discretion Of the trial Court. Robert E. Lee S. M. Co. v. Englebach et al., 18 Colo. 106, 31 Pac. 771; People ex rel. Denison v. Butler, 24 Colo. 401, 51 Pac. 510; Kindel V. Le Bert, 23 Colo. 385, 48 Pac. 641, 58 Am. St. Rep. 234; San Miguel C. G. M. Co. et al. v. Bonner, 33 Colo. 207, 79 Pac. 1025. Third. It is contended that a joint judgment cannot be Sustained, and that, if McCreery was an agent, he was not liable as principal; and, if not an agent, and he was liable as principal, then Mr. Burnell was not liable as principal ; and that a joint judgment cannot be rendered upon an individual or single obligation. Mr. McCreery is not before this court making any complaint as to the judgment against him, either as principal or agent. Mr. Burnell first filed a demurrer to the complaint claiming that several causes of action had been improperly united. This he withdrew and filed a separate answer to the second count of the complaint, denying all its averments. At the commencement of the trial, he moved for judgment on the pleadings because the complaint failed to State a cause of action. He thereafter objected to the introduction of any testimony in support of the second cause of action for the Same reason. At the close of plaintiff’s case, the appellant, Burnell, moved for a nonsuit upon the second cause of action because no Such contract of agency had been proven. After the Verdict was rendered against him, a motion in arrest of judgment was made, in which, for the first time, it is stated, “There is a misjoinder of parties defendant in the second cause of action.” We think this question Was Waived by being raised too late. A defect of parties must be raised either by demurrer or answer, and, if not so raised, it is

waived. Fitzgerald v. Burke, 14 Colo. 559, 23 Pac. 993; People ex rel. Jones et al. v. District Court, 18 Colo. 293, 32 Pac. 819; Wilson v. Welch, 8 Colo. App. 210, 46 Pac. 106; Miller v. Kinsel, 20 Colo. App. 346, 78 Pac. 1075. The fourth contention, laches of the appellee, it is urged he ought not to recover upon account of his lack of business methods, in this, that with all modern mail and telegraph facilities at hand he neglected to make any inquiries concerning McCreery's financial Standing or business integrity, but went blindly on filling his orders when a reasonable investigation would have shown his irresponSibility. This Would have Some force Were the judgment based upon the first count in the complaint, which charged fraud and conspiracy, but which count was, by proper inStructions, eliminated from the consideration of the jury. In this case the question of the agency, and also the authority of the agent to perform the acts for which the appellant was held, were submitted to the jury, which, under proper instructions, found adversely to his contentions. Assuming this finding to be correct, and that McCreery was the agent for the appellant, Burnell, and that he had the authority to make those purchases from the appellee for the appellant who became liable for their payment, it then becomes immaterial to the appellant whether or not the appellee knew, or by reasonable diligence Could have obtained, such information concerning McCreery's financial irresponsibility. Other errors assigned have been considered. Perceiving no prejudicial error against the rights of the appellant, Burnell, the judgment Will be affirmed. Affirmed.

STEELE, C. J., and GABBERT, J., concur

MITCHELL v. TROWBRIDGE. (Supreme Court of Colorado. Dec. 6, 1909.)

1. QUIETING TITLE (§ 10*)—TITLE OF PLAINTIFF. An action to quiet title may be maintained by a person in possession, claiming ownership under color of title. [Ed. Note.—For other cases, see Quieting Title, Cent. Dig. §§ 37, 38; Dec. Dig. § 10.*]

2. TAXATION ($ 788*)—VALIDITY—BURDEN OF PROOF. One relying on a treasurer's tax deed has the burden of showing a compliance with the law, except as to matters of which the deed is made prima facie evidence, by Mills' Ann. St. § 3902, and he must show the assessed value of the property and the due service of the notice of redemption required by section 3926j, if the valuation was $500 or over. [Ed. Note:—For other cases, see Taxation, Cent. Dig. §§ 1559, 1563; Dec. Dig. § 788.*]

Appeal from District Court, City and County of Denver; P. L. Palmer, Judge.

Action by Ellen G. Trowbridge against

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