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ing the due execution thereof, by the appel- , stated, but also because, as stated in section lee, introduced in evidence the note and chat 372 20 Ed.) of Wells on Replevin: "The only tel mortgage and offered to prove, among reason why demand is necessary in any case other things, that upon the trial of the case is to give the defendant an opportunity to in the justice's court the defendant ap surrender without being put to costs; and, peared personally and by attorney and con while this is eminently proper, the object of tested the case upon its merits, and then the rule is fully accomplished, and the plainmade no objection that no demand for the tiff sufficiently punished for his neglect, by possession of the property was made by, or judgment against him for costs, without be on behalf of, the appellant prior to the com ing compelled to surrender his goods." mencement of the action, but set up title to Furthermore, the appellee having given a the property in himself. Upon objection of redelivery bond, procured a change of venue, counsel for appellee, this evidence was re

and contested the case on its merits before jected. Upon the conclusion of appellant's the justice of the peace, was not in a position testimony the appellee offered no testimony, to urge the want of a demand before the acbut moved the court to direct the jury to re tion was commenced, for the first time in the turn a verdict for the defendant, "for the

county court on appeal. Lamping v. Keenan, reason that the evidence does not show that 9 Colo. 390, 12 Pac. 134. It is well settled that, the plaintiff made a demand upon the defend when the defendant claims the ownership of ant for the property in question in compliance

the property and the right of possession, no with the law, viz., before the commencement

proof of demand is necessary. Lamping v. of the suit." The motion was sustained, and Keenan, supra; Howard v. Braun, 14 s. D. a verdict directed, whereupon the jury re

579, 586, 86 V. W. 035; Wells on Replevin turned the following verdict: “We, the jury

(2d Ed.) § 374. in the above-entitled action, find issues here

In either view, the court erred in directing in joined for the defendant.” A motion for

a verdict, and the verdict and judgment rena new trial was overruled, and judgment en

dered were clearly unwarranted. The judgtered in accordance with the verdict. To

ment is therefore reversed, and the cause reverse this judgment appellant prosecutes

remanded for trial upon the merits. this appeal.

Reversed and remanded. Arthur Ponsford, for appellant. .

STEELE, C. J., and BAILEY, J., concur.

GODDARD, J. (after stating the facts as above). The action having been commenced before a justice of the peace, there are no written pleadings. We must therefore resort to the proceedings before the justice of the peace, as disclosed by the record, in order to determine whether the action of the court in directing a verdict was permissible, and the defendant entitled to the verdict rendered: it being conceded that no demand for the possession of the property described in the chattel mortgage was made upon appellee until after the writ was issued and in the hands of the constable. The authorities are not uniform upon the question when demand is necessary; many of the cases holding that, where chattels came lawfully into the possession of a defendant, there must be a de mand and refusal or proof of conversion hefore suit is brought, while others hold, for reasons that seem to us sound and persuasive, that a clemand, made after the bringing of the action, but prior to the execution of the writ, is sufficient, for the reason that a refusal to surrender the property upon such demand is convincing proof that, had a demand been seasonably made, it would have been unavailing. Among them, see Morris v. Pugh, 3 Burr, 1241; Rodgers v. Graham, 36 Vel). 730, 733, 55 X. W. 243; O'Neil v. Bailey, 68 Me. 129; Badger v. Phinney, 15 Mass. 339, 8 Am. Dec. 105; Grimes r. Briggs, 110 Mass. 146. We think these cases state the better rule, not only for the reasons above

(41 Colo. 20) HEISTAND V. BATEMAN. (Supreme Court of Colorado. Oet. 7, 1907.) 1. ('[stouS AND I'SAGES — REQUISITES IN GENERAL.

Custom or usage relating to a particular business, in order to be available for the purpose of determining the rights of parties, must be uniform. notorious, and reasonable.

[Ed. Yote.-For cases in point, see (ent. Dig. vol. 1.), Customs and l sages, $$ 1, 2.) 2. SAME-SUFFICIENCY OF EVIDENCE,

In an action to recover commissions on a sale of goods by defendant to a person brought to defendant's store by plaintiff, evidence that dealers engaged in the same business as defendant had been in the habit of paying 10 per cent. commissions to hack drivers, such as plaintiff, on sales made to parties brought to their stores, where such sales were in the amount usually made to such persons, that such sales were ordinarily in small amounts, and that in a few instances the commission has been paid on sales amounting to $755 and $2000), but above the latter sum, and usually the former, the amount of commission paid was the subject of special agreement, was insufficient to establish a custom to pay 10 per cent. commission on a sale in the sum of about $1,500.

[Ed. Vote.-For cases in point, see Cent. Dig. vol. 1.), Customs and 'sages, $ 16.] 3. SAME--PRESUMPTIOXS.

Evidence of custom may be resorted to for the purpose of ascertaining the meaning and intent of parties to a contract, where the terms employeci are general in their nature, and hence, when such a contract becomes the subjent of litigation, the presumption is indulged, if the parties have not expressed a contrary intention,

that they intended to incorporate therein a the rights of parties, must be 'uniforin, nousage known to them.

torious, and reasonable. Savage F. Pelton, [Ed. Note. For cases in point, see Cent. Dig.

1 Colo. App. 148, 27 Pac. 918; Leach v. Pervol. 15, Customs and Usages, $$ 30-33.]

kins, 17 Me. 462, 35 Am. Dec. 268. The tes4. PLEADING-ISSUES AND PROOF. Where, in an action to recover commissions

timony, as applied to the facts of this case, on the sale of goods, plaintiff relied on a custom

wholly fails to establish these essential reqregulating the amount of the commission, he uisites of a custom which entitles the plainwas precluded from also relying on a special

tiff to recover the commission sued for. As agreement to pay a stated amount.

above stated, it was to the effect that dealers [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, 88 1333-1335.]

engaged in the same line of business in ManAppeal from District Court, El Paso Coun

itou as defendant appear to have been in

the habit of paying 10 per cent. commission ty; Louis W. Cunningham, Judge.

to hack drivers on sales made to tourists Action by G. E. Bateman against J. G.

brought to their stores, where such sales Heistand. Judgment for plaintiff, and de

were in the amount usually made to such perfendant appeals. Reversed and remanded.

sons; that such sales were ordinarily in Lunt, Brooks & Willcox and M. B. Hurley, small amounts, or in the sum of a few dolfor appellant. Arthur Cornforth, for appel lars each; that in a few instances this comlee.

mission had been paid on sales amounting to $75 and $200, but above the latter sum, and

GABBERT, J. This is an appeal from a usually the former, the amount of commis

judgment rendered in an action brought by sion paid was the subject of special agreeappellee, as plaintiff, to recover from appel ment. This is far from establishing a cuslant, as defendant, commissions to which tom to pay 10 per cent. commission upon a plaintiff claimed he was entitled by reason of sale in the sum of several thousand dollars, a sale of a case of specimens by defendant or upon purchases by tourists far in excess of to a person brought to the store of defend the usual amount made by them. ant by plaintiff. The proximate amount of With respect to the agreement relied upon, such sale was $4,500. Plaintiff was a back plaintiff testified that "Mr. Heistand told me driver, and conveyed the purchaser to the personally that he would pay 10 per cent. store of the defendant. He bases his right commission on everything that people bought to a commission of 10 per cent. of the amount that I brought there, and he has paid it to of the sale upon two grounds: First, on the me lots of times. He was paying that comgeneral custom at that time existing in the mission to other hackmen." He says this town of Manitou, among the merchants deal contract was entered into five or six years ing in the same line of goods that defendant previous to the transaction in question. The was, and where defendant was then engaged custom relied upon by plaintiff defeats his in business, to pay hack drivers 10 per cent. right to recover under this agreement. Evion all purchases made by persons from mer dence of custom may be resorted to for the chants to whose stores they conveyed such purpose of ascertaining the meaning and inpersons; second, on an agreement, made tent of parties to a contract, where the terms several years previous, whereby the defend employed are general in their nature.

Exant agreed he would pay him a commission perience has taughr that men of affairs, in of 10 per cent. on such sales. The jury re making contracts, are not always careful to turned a verdict for plaintiff for 10 per cent. express themselves with completeness and of the sum for which the defendant sold the particularity, and that in dealing with one specimens in question, with interest, less the another they leave part of their intention sum of $50, which he acknowledged having unexpressed, in silent reliance on the usages theretofore received. From a judgment ac mutually understood, to enter into and form cordingly the defendant appeals, and, in sup a part of their agreement. 29 Enc. Law', port of the errors assigned, contends that the 422. Hence it follows that, when such a evidence was insufficient to justify submit contract becomes the subject of litigation, the ting the case to the jury on either custom or presumption is indulged, if the parties have agreement.

not expressed a contrary intention, that they There is testimony to the effect that it was intended to incorporate therein a usage the custom of a considerable number of deal known to them; and evidence of such is aders in articles generally purchased by tourists missible, not to vary or contradict the terms to pay hackmen a commission on goods sold of the contract, but to interpret it, as it was to tourists whom they brought to their stores, understood by the parties at the time it was and that such sales were usually small; but made. Id. 423 et seg. Certainly, in the light it does not appear from the testimony that of the testimony as to what the parties had a commission of 10 per cent. was ever paid in mind when the contract in question was on sales exceeding $75, or possibly, in one or entered into, it could not be successfully contwo instances, $200, and that on those in tended that defendant thereby intended to excess of that sum the amount paid depended obligate himself to pay plaintiff a 10 per cent. upon special agreement. Custom or usage commission on a valuable piece of real esrelating to a particular business, in order to tate in Colorado Springs, or a mine in Cripbe available for the purpose of determining ple Creek, which he might sell to a person.

Elmer Olmstead was convicted of violating a building ordinance, and appeals. Reversed and remanded,

J. A. Fowler, for appellant. Wm. A. Bryans, Jr., and Guy Le Roy Stevick, for appel. lee.

brought to his place of business by the plaintiff, but, on the contrary, that the parties had in mind a commission on the usual and ordinary sales to tourists of articles peculiar to the locality purchased of the defendant in the usual and ordinary amount, which it appears, was generally in small sums.

It is insisted by counsel for plaintiff that the question of custom was injected into the case by the defendant. The record does not bear out this assertion. It is true that on cross-examination plaintiff was asked regarding custom; but that, as we have seen, was proper, for the purpose of interpreting the contract upon which he relied. Besides, we find that plaintiff introduced witnesses in chief to prove custom.

It is also insisted on behalf of plaintiff that defendant cannot complain of the action of the court in submitting the question of custom, because instructions similar to those given on the subject were asked on his behalf and refused. It is not necessary to determine this question. It appears that the court, without objection on the part of plaintiff, submitted the case to the jury upon the question of custom, and also upon the agreement. It was clearly error, for the reasons given, to instruct the jury that plaintiff was entitled to recover, if it appeared from the testimony that defendant had theretofore specifically agreed with the plaintiff to pay him the commission in controversy. cannot say that the jury did not find for plaintiff under this instruction, the question of whether or not the defendant is in a position to contend that the court erred in submitting the case to the jury on the question of custom is immaterial.

The judgment of the district court is reversed, and the cause remanded for a new trial.

Reversed and remanded.

BAILEY, J. One of the ordinances of the town of Littleton provided that "no frame building, frame shed or other frame structure shall be erected in fire district No. 1 of the town of Littleton, except as herein provided." The appellee instituted an action against appellant for the violation of this ordinance. There is no dispute in the testimony, from which it appears that on September 24, 1903, appellant was constructing, within the fire limits of district No. 1 of the town of Littleton, a building of which the foundation, the sleepers, studding, floors, joists, windows, doors, casings, and frames, and the rafters, were to be of wood. The outside of the end and side walls and the rafters were to be covered with corrugated iron. At the close of the testimony the court instructed the jury to return a verdict finding the defendant guilty of a violation of the ordinance, which was accordingly done, and judgment rendered on the verdict.

In this the court erred. To hold that the defendant was guilty of a violation of this ordinance is to hold that the building described in the testimony is a frame building. In 19 Cyc., at page 1450, it is said that "frame,” as applied to a building, means "wooden.” The Century Dictionary defines a frame house as being a house constructed with a skeleton frame of timber, covered in with boards, and sometimes with shingles. In the case of Ward v. City of Murphysboro, 77 Ill. App. 519, it appears that the building erected was a wooden frame structure, the south side, ends, and roof of which were covered with wooden sheathing, and the sheathing covered with corrugated iron; the space between the studding being filled with loose brick. As the building was nearing completion the mayor, marshal, and aldermen of the city, assuming to act for the city, tore it down, and appellant brought suit against them, making the city defendant. In that case the third instruction offered by appellants, and refused to be given by the court, was as follows: "In this case the court instructs you that, unless the building erected by the plaintiffs was a wooden building, then the city authorities had no right to tear it down, and your verdict should be for the plaintiffs in such sum as the evidence shall show he has sustained, if any, by reason of tearing down such building." In relation to this instruction the Appellate Court said: "The ordinance prohibits the erection of any 'wooden or frame building. The words 'wooden' and 'frame' are interchangeable; one having the same meaning as the other. A wooden building is a frame building, and a frame

STEELE, C. J., and CAMPBELL, J., concur.

(41 Colo. 32) OLMSTEAD v. PEOPLE, to Use of TOWN

OF LITTLETON. (Supreme Court of Colorado. Oct. 7, 1907.) 1. WORDS AND PHRASES

PHRASES — "FRAME BUILDING."

A frame building is one constructed with a timber frame covered with boards or shingles. and does not include a wooden building covered with corrugated iron.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 3, p. 2929.] 2. MUNICIPAL CORPORATIONS-POLICE POWER --BUILDING REGULATIONS-ORDINANCES.

The erection of a building entirely of timber, ercept the outside of the end and side walls and the rafters, which were to be covered with corrugated iron, did not violate a city ordinance prohibiting the erection of "frame" buildings."

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 1387.]

Appeal from Arapahoe County Court; Stephen R. Pratt, Judge.

building is a wooden building. The instruction substantially stated the law correctly. and the court erred in refusing it.” So, in this case, where it appears that the building was to be an iron-clad building, as distinguished from a wooden one, it is apparent that the erection of it was not in violation of the ordinance, and the court erred in directing a verdict against the defendant. It should have directed a verdict for the defendant. It may be that buildings of the character of the one described in this case are more dangerous than wooden ones; but their construction is not prohibited by ordinance like the one here presented. If it is desired to prevent the erection of such, or other, frail structures, the ordinances should so provide.

The judgment of the county court will be reversed, and the cause remanded, with instructions to dismiss the action.

Reversed and remanded.

5. APPEAL-CROSS-ERRORS-REVIEW'.

Appellee cannot object to the admission of evidence in support of an issue where no crosserror is assigned on the ruling.

[Ed. Note.--For cases in point, see Cent. Dig, vol. 3, Appeal and Error, 3053.]

Appeal from District Court, Arapahoe County; Owen Le Fevre, Judge.

Action by the Colorado Fuel & Iron Company against the Rio Grande Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Wolcott, Vaile & Waterman, W. W. Field, and W. T. Left wich, for appellant. D. C. Beaman, C. E. Herrington, and Fred Herrington, for appellee.

STEELE, C. J., and GODDARD, J., concur.

(41 Colo. 3) RIO GRANDE SOUTHERN R. CO. v. COL

ORADO FUEL & IRON CO. (Supreme Court of Colorado. Oct. 7, 1907.) 1. COMPROMISE AND SETTLEMENT-AGREEMENT -CONSTRUCTION.

Defendant railroad company, while in the hands of a receiver, compromised with its creditors. Plaintiff, claiming a mechanic's lien for a debt incurred prior to the receivership, was designated as an unsecured creditor; the agreement providing that each unsecured creditor should release the company from all claims on account of principal and interest on payment of a certain per cent. in cash of its indebtedness, together with interest from January 1, 1897, and a delivery of certain promissory notes. Plaintiff signed this agreement on condition that the difference between the amount paid under the compromise and the full amount of its debt should abide the final decree and adjustment in its pending suit to foreclose its alleged mechanic's lien. Icld that, such agreement having been fully executed, plaintiff. not having established its lien, was not entitled to recover the balance of the debt. 2. EXCEPTIONS, BILL OF-DEFECTS-WAIVER.

Where plaintiff's counsel 0. K.'d over his signature defendant's proposed bill of excertions, before it was signed and sealed by the judge, plaintiff waived the right to object that certain instruments attached to the bill of exceptions and referred to therein as exhibits were not properly incorporated in the bill.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 21. Exceptions, Bill of. $ 771...] 3. PAYMENT-PLEADING AND PROOF.

Where, in an action for the balance of an account, defendant pleaded payment, an ego('uted compromise and settlement agreement was adinissible in support of such (lefons, though not pleaded.

[Ed. Voto-For (asus in point, see Cent. Dig. vol. 39, l'a yinent, $ 1.30.] 4. PLEADING-AXSWER-I'LTIVATE FACTS.

The office of an answer is to state the ultimate facts on which a defense is predicate, and not the evidence of such facts,

[Ed. Note:-F'or cases in point, see Cent. Diy. vol. 39, Pleading, $ 31.]

GABBERT, J. Appellee, plaintiff below, brought an action against the appellant, as defendant, to foreclose a lien claimed on the railroad owned by the latter, for materials furnished in the construction of such road. At the time the action was commenced, the railroad company was in the hands of a receiver; but the indebtedness sued upon had been incurred prior to his appointment. Thereafter, and before the trial of the cause, an agreement was entered into between the defendant and its creditors, to which the plaintiff was a party, the purpose of which was to effect a compromise and adjustment of the outstanding indebtedness of the railroad company, discharge the receiver, and reinvest the railroad company with the possession and control of its property. The trial resulted in a personal judgment against the railroad company for a balance of the account, which was the basis of the lien claimed, but denied the plaintiff any lien for such judgment. From this judgment, the defendant appeals.

The contention of defendant at the trial was that the creditors' agreement, having been fully executed, operated as a discharge and satisfaction of its entire indebtedness to the plaintiff. The trial court did not so construe that agreement, but held that it operated only as a discharge in part, rendering judgment for a balance of the account sued upon, although it appears from the record that the plaintiff did receive the money and obligations contemplated by the agreement. The correctness of the judgment therefore turns upon a construction of this contract. It embraced two sets of creditors of the defendant company, secured and unsecured, and a list of the creditors, among which was plaintiff ; it being designated as an unsecured creditor in a sum specified. It provided that each of the unsecured creditors should release the railroad company from all claims on account of principal and interest upon the payment of a certain per cent. in cash of its indebtedness against the railroad compilny, as shown by the schedule of indebtedness attached to the agreement, tusether with interest from January 1, 189.), and the delivery of promissory notes of the railroad company,

indorsed by the Denver & Rio Grande Railroad Company. As to the secured creditors, the agreement provided that each should re ceive payment in cash of one half of 6 per cent. interest on the principal obligation computed up to January 1. 189.3, from the date to which interest had theretofore been paid ; and for the remaining half of such interest the promissory note of the railroad company, indorsed by the Denver & Rio Grande Railroad Company. Provision was also made with respect to the payment of the principal of the obligations held by the secured credit. ors, but they are not necessary to a determination of the rights of the parties to this appeal. The plaintiff signed this agreement with this proviso:

"The Colorado Fuel & Iron Company has suit pending in the district court of Arapahoe county, Colo., to establish mechanic's lien. It subscribes the foregoing agreement as an unsecured creditor upon the condition that the difference between the amount paid by this compromise and the full amount of its debt abide the final decree or adjustment in sa id suit for me chanic's lien.” As previously stated, the record discloses that the plaintiff, subsequent to the execution of this agreement, and before trial, receivel the payments and obligations contemplated therehy as an unsecured creditor, subject to the provision attached to the compromise agreement. It is certainly clear from the language employed in this agreement that if the plaintiff failed to establish its lien it should be regarded as an unsecured creditor, and the payment in cash of the per cent. of its indebtedness as specified, with interest thereon from January 1, 1893, and the delivery of the promissory notes mentioned in such agreement, were to operate as a discharge of its account as scheduled. Having received the cash and the obligations as stated in the agreement, and having failed to establish its lien, it was only an unsecured creditor, and could exact nothing more from the defendant in discharge of its account than the payment of the money and the delivery of the obligations contemplated by the agreement.

Counsel for plaintiff say that, if such had been the purpose of the agreement, it would have been an easy matter to have employed language to that effect. True, the terms of the agreement in this respect, so far as the plaintiff is concerned, might have been expressed in different language, but the contract as a whole can receive no other construction than that we have given it. The secured creditor's were to receive interest on their respective obligations to January 1, 1895, while the unsecured creditors were only to be allowell interest upon their respective obligations from that date, thus clearly showing that had the plaintiff established its lien, which would have resulted in making it

a secured creditor when taken in connection with the proviso attached for its benefit, it would have been entitled to interest upon its account against the railroad company from the date such account began to draw interest, instead of from January 1, 1895, if it failed to establish its lien. This conclusion is manifestly correct, because it appears from the agreement, in connection with the complaint in the action to which the proviso refers, that the principal suni claimed in the complaint was identical with that mentioneel in the compromise agreenient. On this sum interest was claimeil from July 11, 1893, so that the only question between the parties at the time the compromise agreement was effected was interest, and that was to be determined by determining whether the plaintiff was a secured or an unsecurell creditor.

Counsel for the plaintiff contend that the . compromise agreement and the evidence of a compliance therewith on the part of the defendant cannot be considered, because not properly incorporated in the bill of exceptions. These instruments are attached to the bill of exceptions and referred to therein as exhibits and as a part thereof. Conceding, but not deciding, that this is not a strict compliance with the rule with respert to the method by which exhibits must be incorporated in a bill of exceptions as previously de clared by this court, the objection on the part of the defendant that it is not is waived. It appears that, prior to the date that the bill of exceptions was signed and sealed by the trial judge, it was 0. Kd over the signature of counsel for plaintiff. In such circumstances the alleged defect in the bill of exceptions will not be considered.

It is also urged by counsel for plaintiff that the instruments in question should not have been received, because not pleaded. The defendant pleaded payment of the account sued upon, and these instruments were competent to establish that defense. The office of an answer is to state the ultimate facts upon which a defense is predicated, and not the evidence of such facts.

It is further urged by counsel for plaintiff that the creditors' agreenient should not have been received in evidence because objecteil to upon the ground that a copy, instead of the original, was tendered without a sufficient showing upon the part of the defendant of its inability to produce the original. The appellee has assigneil no cross-error on this ruling, and consequently the question raised is not before us for consideration.

The judgment of the district court is reversell, and the cause remanded for further proceedings.

udgment reversed.

STELLE, C. J., and CAMPBELL, J., concur.

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