DENCE. - 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. 88 115-116; 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.*] Appeal from District Court, City and County of Denver; Samuel L. Carpenter, Judge. Action by Charles O. Morrison against L. M. McCreery, F. A. Burnell, and others. Judgment for plaintiff, and defendant Burnell appeals. Affirmed. be turned over to Burnell 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 ton; 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 F. A. Williams, for appellant. Thomas M. refusing to grant a nonsuit. These contenMorrow, for appellee. HILL, J. Verdict of the jury and judgment in favor of the appellee, plaintiff below, against the appellants in the sum of $939.38, from which the appellant, F. A. Burnell, appeals. The second count in the complaint, upon which recovery was had, alleged an agreement between the appellants, F. A. Burnell and L. M. McCreery, in substance: That the latter should act as an agent for the former in the purchase of hay and other products, to purchase the same in the name of McCreery & Co., or in the name of L. M. McCreery; that as fast as purchased they should tions 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 circumstan- | waived. Fitzgerald v. Burke, 14 Colo. 559, tial evidence. Union Gold Mining Co. v. 23 Pac. 993; People ex rel. Jones et al. v. Rocky Mountain Nat. Bank, 2 Colo. 565; District Court, 18 Colo. 293, 32 Pac. 819; Higgins et al. v. Armstrong, 9 Colo. 38, 10 Wilson v. Welch, 8 Colo. App. 210, 46 Pac. Pac. 232; Gambrill et al. v. Brown Hotel Com- 106; Miller v. Kinsel, 20 Colo. App. 346, 78 pany, 11 Colo. App. 529, 54 Pac. 1025. Pac. 1075. 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 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 PLAIN TIFF. 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.*1 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 Walter C. Mitchell. From a judgment for plaintiff, defendant appeals. Affirmed. Laura Tilden Ray, for appellant. John H. Gabriel, for appellee. STEELE, C. J. In an action to quiet title to a certain lot in the city and county of Denver, plaintiff at the trial produced a witness, who testified that he had collected the rents for the period of eight or nine years; that the plaintiff had been in the actual possession of the premises continually during the year 1904 prior to the bringing of the suit, and introduced a deed from E. G. Trowbridge conveying all his right, title, and interest in the property to the plaintiff, and then rested his case. The defendant, in support of the issue that he was the owner and entitled to the possession, offered a treasurer's deed to the same premises. The court refused to admit the deed in evidence, and found the issues in favor of the plaintiff, ordered the treasurer's deed canceled, and, as a condition precedent to the entering of final judgment, required the plaintiff to pay into court, for the use of defendant, the sum of $55. From this judgment the defendant appealed. DAVIS v. PEOPLE ex rel. TOWN OF BRUSH. (Supreme Court of Colorado. Dec. 6, 1909.) 1. CRIMINAL LAW (§ 1042*)-APPEAL-PRESENTATION OF QUESTIONS IN LOWER COURT. The objection that a judgment that defendant, convicted of violating town ordinances, stand committed till his fine is paid, is uncertain and unintelligible because the place of commitment is not named, when not made in the trial court, will not be considered on appeal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2650; Dec. Dig. § 1042.*] 2. MUNICIPAL CORPORATIONS (§ 643*)-VIOLATION OF ORDINANCES-PROSECUTION-JUDGMENT EFFECT OF APPEAL BOND. A judgment that defendant stand committed till his fine for violating town ordinances is paid is proper, though the fine is secured by an approved appeal bond when the judgment is ren dered. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1416; Dec. Dig. § 643.*] Appeal from Morgan County Court; Tyler D. Heiskell, Judge. R. Dent Davis was convicted of violating ordinances of the town of Brush, and appeals. Affirmed. Allen & Webster, for appellant. M. M. House and John Hipp, for appellee. STEELE, C. J. The trial of the defendant in the county court on appeal from the police magistrate's court, resulted in his conviction. He was fined the sum of $50 and costs for the violation of the ordinances of the town of Brush. In the judgment it is ordered that the defendant stand committed until the fine is paid. Defendant appealed to the Court of Appeals. The points discussed in the appellant's brief are, that: (1) "The motion for nonsuit should have been granted, because the plaintiff had failed to show that he was the owner of the premises." An action to quiet title may be maintained by a person in possession, claiming ownership under color of title. (2) "That the treasurer's deed should not have been refused as evidence." The defendant having relied upon the treasurer's deed as a muniment of title, the burden was upon him to show a compliance with the law, except as to such matters as by the deed itself are made prima facie evidence by section 3902, 2 Mills' Ann. St. It, therefore, was incumbent upon him to show: (1) The assessed value of the property, and, if $500 or over, that notice of the time of redemption had been given as required by the statute. Sec- There is no bill of exceptions. The obtion 3902a (3926j) 3 Mills' Ann. St. (2) Whether at the time the notice was required to be given the land was occupied or vacant, and, if occupied, that he had served notice upon the occupant or occupants, as well as upon the other persons described in the stat The defendant failed to show that the assessed valuation was under $500, and failed to show that the premises were vacant and unoccupied. The treasurer's deed, therefore, was not admissible. Richards v. Beggs, 31 Colo. 186, 72 Pac. 1077; Treasury T. W. & R. Co. v. Gregory, 38 Colo. 212, 88 Pac. 445. No prejudicial error appearing in the record, the judgment is affirmed. Judgment affirmed. WHITE and BAILEY, JJ., concur. The assignment of error is: That the court erred in rendering and entering judgment against the appellant that he stand commit-. ted until the fine and costs were paid: (1) Because the fine was secured by an approved appeal bond at the time the judgment was rendered; and (2) because the judgment is uncertain and unintelligible. jections are that because an appeal bond had been approved, the court should not have ordered defendant committed until the payment of the fine, and that as no place of imprisonment was mentioned in the judgment, it is uncertain and unintelligible. The court would probably have designated one of the places mentioned in the statute, if his attention had been called to the omission, but no such objection was made, and we shall not consider it here. Upon the authority of Saner v. People, 17 Colo. App. 307, 69 Pac. 76, the court properly ordering that the defendant be committed upon default in payment of the fine, the judgment is affirmed. Judgment affirmed. GABBERT and HILL, JJ., concur. that the plaintiff had caused the case to be THOMPSON v. CRESCENT MILL & ELE- set before Judge McCall's division and was VATOR CO. (Supreme Court of Colorado. Dec. 6, 1909.) 1. APPEAL AND ERROR (§ 113*) - QUESTIONS REVIEWABLE-REFUSAL TO SET ASIDE DE FAULT JUDGMENT. The Supreme Court may review the refusal to set aside a default judgment where the record of the proceedings culminating in the judgment and those subsequent thereto are brought up for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 766; Dec. Dig. § 113.*] 2. JUDGMENT (§ 143*)-DEFAULT-SETTING ASIDE GROUNDS. Where counsel for defendant was not present in the county court on the day fixed for the trial of the cause, but relied on the statements of employés in the clerk's office that the cause might not be reached, and two judges were trying causes on the docket, and the cause was transferred from one judge to the other, who rendered default judgment, the refusal to set aside the judgment was not an abuse of the on the board in that division; that affiant was informed that the case was transferred from Judge Lindsey's division without notice to affiant's attorney, and called up in that division, and default taken. Nothing appears in the record to advise us upon what ground the court based his decision denying the motion to set aside the judgment. We observe, however, that the affidavit contains no statement based upon the affiant's knowledge, except that he was engaged in the pursuit of his usual vocation on February 1st, and did not know that the case had been set for trial for that day. Because of this, the court might have properly rejected the affidavit and denied the motion, but we shall assume that it has been established by proof that the cause was set for trial for February 1st; that some one connected with the clerk's office had notified counsel that probably the case would not be reached; that the title of the case was upon the calendar for February 1st in the courtroom presided over by one person, and that, without notice to the defendant, or his counsel, the cause was heard in a different room, and before another judge. The fact remains, however, that neither defendant nor his counsel appeared before the county court on that R. H. Gilmore, for appellant. Rogers, El-day prepared to try the cause. lis & Johnson, for appellee. court's discretion. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 281, 282; Dec. Dig. § 143.*] Appeal from County Court, City and County of Denver; Chas. McCall, Judge. Action by the Crescent Mill & Elevator Company against W. G. Thompson. From an order denying a motion to set aside a default judgment, defendant appeals. Affirmed. STEELE, C. J. The cause was regularly set for trial. It is the duty of counsel to appear before the The defendant not appearing in the justice's court, default judg-court on the day his case is to be tried, and ment was entered against him. He appealed to the county court. The county court fixed February 1, 1907, at 9:30 o'clock, as the time of the trial. On that day the defendant not appearing, the plaintiff took judgment. On February 4th following, the defendant filed his motion to set aside the judgment. The motion was denied and the defendant ap pealed to this court. We are authorized to review the action of the trial court in declining to set aside the judgment when, as in this case, the record of the proceedings culminating in the judgment, as well as those subsequent thereto, are brought here for review. The affidavit in support of the motion to vacate the judgment, sets forth, in substance, that the defendant did not know that the case was set for trial; that on the day of the trial he was pursuing his usual vocation; that he was informed by his attorney that the attorney had communicated by telephone with an employé in the office of the clerk of the county court, and was informed that the case would probably not be tried on February 1st; to remain in the courtroom until excused CAMPBELL and MUSSER, JJ., concur. *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes J. M. Gearin, for appellant. A. S. Ben LAURY V. NORTHERN PAC. TERMINAL nett, for respondent. CO. (Supreme Court of Oregon. Jan. 4, 1910.) 1. RAILROADS (8 355*) OCCUPATION OF STREET RIGHTS OF PUBLIC-CARE RESTREET-RIGHTS QUIRED. The public has an equal right with a railroad company to the free use of a highway upon which the railroad track is laid, and the railroad company will not be permitted to omit any reasonable duty that may tend to the safety of the public upon such street. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1221; Dec. Dig. § 355.*] 2. RAILROADS ($ 400*)-INJURIES TO PERSON ON TRACK-EVIDENCE-QUESTION FOR JURY. Evidence in an action for injuries received while crossing a railroad track operated on a street held sufficient to take the case to the jury on the issue of negligence. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1365-1367; Dec. Dig. § 400.*] 3. RAILROADS (§ 383*)-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE. Plaintiff was injured by being run over by a car while crossing a street on which the railroad was being operated. It was dark, and the car was being backed by an engine which was also backing. There was no light displayed at the rear of the car, and no switchman to give warning of its approach, but the company claimed that the bell was rung. Held that, in order to charge plaintiff with contributory negligence, it must be shown that she heard the bell. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1307; Dec. Dig. § 383.*] Appeal from Circuit Court, Multnomah County; J. B. Cleland, Judge. Action by Stella Laury against the Northern Pacific Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed. This is an action by Stella Laury against the Northern Pacific Terminal Company to recover damages for a personal injury. The complaint avers, in effect, that the defendant is a corporation engaged in switching engines and cars in terminal yards controlled by it in Portland; that one of its tracks is laid along North Front street, a public highway in that city; that on October 25, 1907, while the plaintiff was passing along and across such street, the defendant, without giving her any warning of the approach of a car, and without having any person in charge thereof, ran it upon her, throwing her upon and forcing her along the track until the wheels of the car ran over and crushed one of her lower limbs, thereby damaging her in a stated sum. The answer denies the material allegations of the complaint, and avers that the injury of which the plaintiff complains was entirely due to her own carelessness, setting forth the particulars thereof. The reply puts in issue the allegations of new matter in the answer, and, the cause having been tried, a judgment was rendered against the defendant in the sum of $7,500, from which it appeals. As MOORE, C. J. (after stating the facts as above). It is maintained that errors were committed in denying a motion for a judgment of nonsuit, and in refusing to direct a verdict for the defendant, to which rulings of the court exceptions were taken. these propositions substantially embody the same legal principle, they will be treated as a single question, to determine which the testimony relating to the alleged negligence of the defendant will be reviewed. The plaintiff, on October 25, 1907, the day she was hurt, had been employed in Portland at the factory of the American Can Company, located on the northerly side of North Front street, which highway at this place extends north about 48° west. In the center of that street is laid one of the defendant's railroad tracks, and connected therewith by a switch, about 100 feet easterly of the factory, is a spur track which curves northerly to and runs parallel with that building. Fourteenth street extends due north and terminates at North Front street, and from the east line of the former highway at its junction with and at a right walk parallel to and connecting with the angle to the latter street extends a plank easterly side of a passageway, about 10 feet wide, at that end of the can factory, used by the employés as an entrance thereto. There were employed by the American Can Company, on October 25, 1907, about 50 men and as many women, who ceased working on that date at 5:30 p. m., and, after turning in their time checks and obtaining their wraps, they passed out at the easterly end of the factory, thence along the passageway to North Front street, where they found, standing on the spur track, a furniture car, the then westerly end of which obstructed a part of the route. A locomotive headed southeast also stood, at that time, on the spur track nearer the switch, but whether or not a coupling had then been made is disputed. After several of the can company's employés had safely passed over the unimpeded portion of the crossing, the engine pushed the car back until it entirely covered the space occupied by the passageway. While the car was thus moving, two young women, Teresa Schoener and Mary Heitzenreter, who worked in the can factory, were in the center of the spur track, immediately in front of the car, whereupon a switchman, standing on the ground, seeing them and realizing their imminent danger, gave a signal with his lantern, causing the engine to be halted. Before the signal was given, however, Mrs. Lillie Larmon, another employé, in attempting to cross the track, was struck by the car, but her husband, noticing her peril, rescued her from *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |