« ForrigeFortsett »
Frank J. Hangs, for appellant. Robert G. in the First National Bank of Cripple Creek, Withers, for appellee.
Colorado." This assignment was not made
until the parties had learned that plaintiff BAILEY, J. On July 1, 1901, the appellee, was preparing to attach the money. The in an action then commenced against V. J. intervener did not furnish the bond as reStumpf and Frank Myers, caused a writ of quired by the assignment, and paid out, in attachment to be issued, and certain money's addition to the $30 recited in the assignment, in the hands of the First National Bank of the sum of $100, to the attorney, making å Cripple Creek, said to belong to defendants total expenditure of $130 as a consideration in that action, to be garnished. Shortly after for the assigument of $1,000. Under these the garnishee summons was served, appellant conditions the trial court was justified in presented to the bank an assignment of ac finding the issues for the plaintiff, and the count of Stumpf and Myers. The bank re judgment will not be disturbed. It will therefused to acknowledge the assignment be fore he atfirmed. cause it had been served with a girnishee Affirmed. summons. For some reason the action brought by appellee against Stumpf and My STEELE, C. J., and GODDARD, J., concur. ers was not tried until the 12th day of November, 1902, at which time appellant filed his petition for intervention, claiming that
(41 Colo. 201) the money had been assigned to him upon the
WATT V. LEHR. 1st day of July, 1901. Judgment was taken
(Supreme Court of Colorado. Oct. 7, 1907.) against the defendants by plaintiff, and the writ of attachment sustained. Plaintiff an
APPEALS--REVIEW-QUESTIONS or FACT.
A finding on conflicting evidence will not be swered the petition of intervention, alleging reviewed on appeal. that the assignment was made by the de [Ed. Xote.-For cases in point, see Cent. Dig. fendants and accepted by the intervener un
vol. 3, Appeal and Error, $$ 3937-3937.] der the advice of an attorney of defendant
Appeal from District Court, City and Counand the intervener for the use and benefit of
ty of Denver; P. L. Palmer, Judge. the defendant, and for the purpose of at Action by George Watt against Mrs. Elizatempting by fraudulent and pretended assign
beth Lehr. Judgment for defendant, and ment to defeat the rights of the plaintiff, as
plaintiff appeals. Aftirmed. well as the lien of the judgment and garnish
W. II. Hunt and E. I. Stirman, for appelment, and to obtain money for the use and
laut. benefit of defendant, and was not made in good faith. The matter went to the trial
GABBERT. J. Appellant, as plaintiff, com(ourt on the plea of intervention and the
menced an action against appellee, as defendissue tendered by this defense. The issues
ant, to recover from her the sum of $100 upwere found for plaintiff, and the intervener
on an express contract which he alleged had appealed.
been entered into ly her through her husband The only question involved in this action is
as her agent. The contract in question, as one of fact. It was found by the court al
set out in the complaint, was to the effect versely to the intervener upon competent
that defendant, through her agent, agreed testimony, and the judgment must be alim
with the plaintiff that, if he would secure ed. It appears from the testimony that the verta in property for her at a. sum specified, defendants in the attachment suit had been she would pay him $100 for his services. An arrested and were in the custody of the sher
answer was filed, denying the contract. On iff. They were desirous of securing some this issue the finding of the trial court was person to sign as surety their appearance
for the defendant, and plaintill appeals. bond. They made a check to the intervener
The testimony bearing on this issue and for $1,000. This check was to have been de
the collateral questions relevant thereto was livered to Jr. Burnside upon condition that
conflicting, and, under the established rule of he would sign the bond. The intervener and
this court, will not be disturbed on review'. his counsel valled upon Mr. Burnside, and he
We shall therefore only refer briefly to the refused to sign the bond because he had been
material ultimate fact which the court found informed that the plaintiff was going to at in favor of the defendant. Plaintiff did not tach the money in the bank. Defendants rely upon a personal contract with defendant, then, upon the advice of their counsel, made
but upon one made by her husband, us lier tlie following assignment to the intervener:
agent. With respect to this contract, it apCripple (reek, ('olo., June 29, 1901. For
pears that the question was whether the and in consideration of the sum of fifty dol
agreement alleged to have been made by the lars to us in hand paid by George Gooile and husband embraced a promise on the part of the furnishing of bond and employing an at the wife to pay the sum sued for, or whether torney and other services to be performed by such promise was made by the husband only the said George Goode, we hereby sell, assign for himself. This question, as we have startand transfer to the said George Goode the ed, was resolved against the plaintiff on (onsuw of one thousand dollars now on deposit flicting testimony, or, perhaps more accurate
ly speaking, upon testimony of a character tax deed. The appellant, defendant below, from which the trial court was justified in claims title to the premises under a conveyfinding that the promise to pay was on behalf ance from the patentee of the gorernment of the husband only. It is urged by counsel which vested in him the fee title to the premfor plaintiff that, because the defendant pur ises. The facts disclosed by the record that chased the property, she should be held liable are pertinent to the inquiry presented for because thereby she ratified the contract of our consideration, are as follows: The propher husband. In view of the finding of the erty was subject to taxation for the year court, that question is not involved. By pur 1888, and the taxes assessed thereon for that chasing the property defendant did not be year remaining due and unpaid on the 31st come liable to pay any sum which her hus day of July, 1889, the county treasurer offerband promised to pay as his obligation alone, ed the property for sale, and struck the same and by such finding it necessarily follows off to the county for the amount of taxes due that her husband never assumed to make any
thereon. The property being unredeemed promise for her to pay the plaintiff for his from such sale for more than three years. services. Consequently, there was no con the county treasurer executed a deed to the tract to ratify.
county on the 10th day of October, 1893, reThe judgment of the district court is af citing as a consideration therefor the tax of firmed.
1888, and the subsequent taxes on said propJudgment affirmed.
erty to the amount of $32.37. On the 15th
day of January, 1902, the county commisSTEELE, C. J., and CAMPBELL, J., con sioners, in their individual names, executed cur.
a deed to the appellee for the premises for
and in consideration of the sum of $C0 by (41 Colo. 25)
him then and there paid. No taxes were
assessed against this property from 1893 un. DIMPFEL v. BEAM.
til the year 1902. In 1903 the appellant paill (Supreme Court of Colorado. Oct. 7, 1907.)
this tas, and also the tax for the year 1903. 1. STATUTES-RELATION OF AMENDATORY ACT The appellee testified that he went upon the TO ACT AVENDED. Where a section in an existing law is
property for the first time about July or amended in the mode prescribed by the Consti
August, 1903, and took out and shipped 17,tution, it ceases to exist, and the section as 920 pounds of ore, of the value of $21.48 per amended supersedes the original.
ton, and gathered up five or six tons more [Ed. Note.-For cases in point, see Cent. Dig. from the surface, and that he had not been vol. 44, Statutes, § 311.]
on the property since. The appellee attempt2. TAXATION–Tax DEED-STATUTES-REPEAL
ed in his replication to plead the five-year OF SECTION AJENDED. 2 Mills' Ann, St. $ 3900, authorizing the
statute of limitation. Mills' Ann. St. $ 3904. issuance of a tax deed to a county upon demand S. S. Sherman and Ben Griffith, for appelof the county clerk, was superseded by LAWS 1893, p. 428. $ 1, whereby the right of a county
lant. G. D. Bardwell, for appellee. to take a tax deed was taken away, and providing that tax sale certificates be assigned up
GODDARD, J. (after stating the facts as on conditions specified, and hence, a tax deed, above). The controlling question is whether showing on its face that it was made to Hins
the tax deed issued to the county is valid, dale county several months after the law of 1893 went into effect, was a nullity.
and vested the title to the premises in the 3. SAME-ACTION TO QUIET TITLE-LIMITA county. Upon the trial below, the defendant TIONS-VOID TAX DEED.
objected to the introducion of the deed beWhere one holding a tax deed, void on its cause of its invalidity for several reasons apface, sues to quiet the title, and defendant answers that he is the owner in fee under a
pearing upon its face, among them the want conveyance to him from the patentee of the of power in the county to take or receive government and seeks to recover on a cross-com the same. In the view we take of this parplaint the value of ore hauled from the premises ticular objection, it becomes unnecessary to by the plaintiff, the statute of limitations is no bar to the cross-complaint, since the statute does
consider whether the other objections were not apply where a deed is void on its face.
well taken or not. By the statute enacted 4. SAME-SET-OFF AND COUNTERCLAN.
in 1885 (Sess. Laws, p. 323; 2 Mills' Ann. Where one holds possession under a void St. $ 3900), the issuance of a tax deci sa able tax deed, rents and profits may be offset county was authorized upon demand of he against taxes paid by him.
county clerk at any time after three years Appeal from District Court, Gunnison
from the date of sale, and in pursuance of a County; Theron Stevens, Judge.
certificate of purchase for land bid off by the Suit to quiet title by Thomas L. Beam
county. This statute was amended by an act against W. O'Sullivan Dimpfel. From a de
approved April 8, 1893, whereby the right cree for plaintiff, defendant appeals. Re
of a county to take a tax deed was taken versed and remanded.
away, and in lieu thereof the county treasurThis is an action by appellee, as plaintiff, er was authorized to assign the tax sale certo remove a cloud from the title to the Bour tificate upon payment of the amount of the bon County lode mining claim situate in tax with the interest and penalties called for II:nsdale county, Colo.; he claiming title by such certificate, or for such sum as the thereto through and by virtue of a certain board of county commissioners at any regu
W., who employed them to do the work, had been previously terminated, evidence held sufficient to sustain the finding that the agency of W. had not terminated at the time of the employment.
[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 41.]
Appeal from District Court, Teller County; Louis B, Cunningham, Judge.
Action by Fred Marshall, as administrator for Walter Marshall, deceased, against the Cripple Creek Tunnel, Transportation & Mining Company, to recover for work and labor performed. From a judgment for plaintiff, defendant appeals. Affirmed.
Champion & Blunt, for appellant. C. E. Brady, for appellee.
lar meeting may decide. Sess. Laws 1893, p. 428, § 1; 3 Mills' Ann. St. $ 3900. Lovelace v. Tabor M. & M. Co., 29 Colo. 62, 66, 66 Pac. 892. “It is firmly settled that where a section in an existing law is amended in the mode prescribed by the Constitution it ceases to exist, and the section as amended supersedes the original." Walsh v. State ex rel. Soules, 112 Ind. 357, 41 N. E. 63, 33 L. R. A. 392. The tax deed shows on its face that it was made to Hinsdale county on the 10th day of October, 1893. The statute, as amended, was in force for several inonths before this date. The deed therefore was a nullity; the statute having taken away not only the right of the county to receive the deed, but also the power of the county treasurer to make a deed to the county. The deed being void, it follows that the statute of limitations, if well pleaded, would have constituted no bar to the relief the appellant was entitled to under the allegations of his crosscomplaint; it being well settled that the statute of limitations does not apply where the deed is void on its face. Crisman V. Johnson, 23 Colo. 264, 268, 47 Pac. 296, 58 Am. St. Rep. 224; Gomer v. Chaffee, 6 Colo. 314, 317. As was said in the latter case: “It is difficult to see how the statute of limitations can avail a defendant holding a void deed. There was nothing for the statute to operate upon; nothing for it to run in favor of or against; nothing to set it in motion. The deed was void; it did not give him constructive possession nor the right of actual possession.” In the circumstances of this case, the appellee was not justified in entering upon the property and removing the ore therefrom, and the proceeds of the ore taken by him therefrom should be offset to the extent of the taxes paid by him. One holding possession under a voidable tax deed, rents and profits may be offset against taxes paid by him. Longworth v. Johnson et al.. 66 Kan. 193, 71 Pac. 239.
The judgment is reversed, and the cause remanded, with directions to the court be low to enter a decree in favor of appellant upon his cross-complaint, declaring null and void the tax deed from the county treasurer of Hinsdale county to said Hinsdale county, and canceling the same of record, and declaring the pretended deed from Hinsdale county to appellee null and void, and canceling the same of record.
Reversed and remanded.
GODDARD, J. This is an action to re cover for work and labor performed by plaintiff's intestate and three others for the appellant, defendant below, in what is known as the “Standard Tunnel," upon the property of the appellant. The services were performed during the months of August, September, and October, A. D. 1898, under an employment by one E. L. White, and consisted in running a drift in said tunnel, and work upon the machinery, track, and other property belonging to the company.
The ground upon which appellant relies to escape liability is that White was not authorized to employ the men in behalf of the company to do this work at the time they were employed, although he was theretofore the authorized and acting representative of the company in the management of its property, claiming that his agency was terminated in the month of February preceding. The evidence as to when his agency terminated is conflicting. Mr. Wallace, the president of the company, testified that in February, 1898, he (White) was discharged by the company. Mr. White testified that he was not discharged at that time, but that he continued to act as agent in the management of, and was in charge of, the company's property, as its agent, during the months aforesaid and until December, 1898. There is evidence tending to corroborate Mr. White's testimony. In these circumstances the finding of the court below must be accepted by us as conclusive upon this controlling question of fact, and its judgment must be affirmed.
STEELE, C. J., and BAILEY, J., concur.
STEELE, C. J., and BAILEY, J., concur.
(41 Colo. 126) CRIPPLE CREEK TUNNEL, TRANSPOR
TATION & MINING CO v. MARSHALL. (Supreme Court of Colorado. Oct. 7, 1907.) PRINCIPAL AND AGENT-EVIDENCE OF AGENCY -WEIGHT AND SUFFICIENCY.
In an action for work and labor performed by plaintiff's intestate and three others, where defendant contended that the agency of
(41 Colo. 9) INNES V. BOGAN, GAINES & CO. (Supreme Court of Colorado. Oct. 7, 1907.) BROKERS-COMPENSATION - OBTAINING PURCHASER.
Where a broker brought a prospective purchaser before the owner of land, and the prospective purchaser, upon being told the price, left without taking any action, the broker was not entitled to a commission, since he had not
ant. The plaintifes produced two witnesses; 76 Pac. 1058; and many authorities cited in
furnished a purchaser ready, able, and willing to this the proof shows that, very shortly to buy on the seller's terms.'
after the conversation in the office of the [Ed. Note.--For cases in point, see Cent. Dig.
plaintiffs, defendant sold the property to a vol. 8, Brokers, 88 75-81.]
man named Sharp, who subsequently sold it Appeal from District Court, Mesa County ;
to Eppert; the consideration named in the Theron Stevens, Judge.
deed from defendant to Sharp being $5,000. Action by Bogan, Gaines & Co. against
At the close of plaintiffs' testimony defendJoseph Innes. From a judgment for plain
ant moved that the jury be instructed to retiffs, defendant appeals. Reversed.
turn a verdict for the defendant. This moS. N. Wheeler, for appellant. Carnahan &tion was overruled, but it should have been Van Hoorebeke, for appellees.
granted. Under the terms of the contract the
defendant had the right to name the price BAILEY, J. The defendant entered into for which the land was to be sold. The only the following agreement with plaintiffs: “I price that he named was $4,750 net to him, hereby agree to pay Bogan, Gaines & Co., real and the proposed purchaser was not willing estate dealers of Grand Junction, Colorado, to take it at that price. There is nothing in a commission of 10% if they furnish me a the contract prohibiting the defendant from purchaser for my 160 acres located 242 miles selling the property himself. There is no tesE. of Fruita. The term 'furnish a purchas- timony showing any collusion or fraud beer shall include all parties who they refer to tween Sharp and the defendant. Before the me, either through introduction or otherwise, plaintiffs could be entitled to a judgment, it or to whom they show my property. The was necessary for them to furnish a purchasselling price and terms shall be named by er who was ready, able, and willing to buy me, and I agree to pay said commission out
on the terms of the seller. Having failed to of the first payment made by their purchaser do that, the court should have directed a (Signed] Owner, Joseph Innes.” Plaintiffs verdict. The following authorities support instituted this action upon the contract, al the foregoing proposition: Nechem on Agenleging that the defendant named as the selling cy, 967; Wylie v. Marine Natl. Bank, 61 N. price for the land the sum of $5,000, and that Y. 416; Hanrahan v. Ulrich, 107 Ill. App. they found a purchaser, one William Eppert, 626; Kilham v. Wilson, 112 Fed. 565, 50 C. C. who was ready, willing, and able to purchase A. 451; Brown v. Keegan, 32 Colo. 463, 76
76 the first being Eppert, the prospective pur the foregoing. chaser, who testified, so far as the making For the reasons above stated, the judgment of the contract was concerned, as follows: of the district court will be reversed. “We met Mr. Innes, according to the agree Reversed. ment, in Grand Junction, at Mr. Gaines' office. Mr. Gaines was present. We went into STEELE, C. J., and GODDARD, J., concur. the office, and I asked Mr. Innes what he would take for the land—what was his best price? He said $1,750 net to him. We did
(41 Colo. 65) not do anything about it. We got his price YOUNG et al. v. PLATTNER IMPLEMENT and left. I was willing to pay $5,000 for the
CO. property." Upon cross-examination he said (Supreme Court of Colorado. Oct. 7, 1907.) that he never told Innes that he was willing
1. CORPORATIONS CORPORATE EXISTENCE to buy the place on those terms, and that he
DENIAL-ESTOPPEL. never authorized the plaintiffs to make any Where defendants signed a note, sued on, proposition upon the place whatever. The reciting that the payee was a duly organized testimony of Gaines, one of the plaintiffs, so
corporation, defendants were estopped to deny
the corporation's legal existence. far as it related to the price of the property
[Ed. Note.-For cases in point, see Cent. Dig. as named by Innes, was as follows: "I met vol. 12, Corporations, $$ 81-90.) Innes on the street, and told him that Eppert 2. SALES—IMPLIED WARRANTY – KNOWLEDGE was ready to buy the place at $5,000. Mr. OF FITNESS. Innes came into the office, and went back into The rule that, where a seller contracts to the room where Mr. Eppert was, and I sat
supply an article to be applied to a particular
purpose, the buyer trusting the dealer's judgdown on the south side of the desk, and Mr.
ment or skill, there is an implied warranty of Innes near the door, and I said: 'Yow, Mr. fitness, does not apply where the purchaser has Eppert is ready to buy that place, and would equal means of knowledge with the seller as to
the fitness of the thing sold for the purpose like to know your best price.' He says: 'I
intended, or where tlie seller informs the buyer want $4,750 net to me. There wasn't very that he has no personal knowledge of the artimuch said. Innes got up and left the room." cle purchased. Upon cross-examination Gaines testified that
[Ed. Note.--For cases in point, see Cent. Dig. the only price that Innes fixed was in the of
vol. 43, Sales, $8 762-764.] fice, at $1,750 net to him, and that Eppert did Appeal from County Court, City and Counnot say that he would take the place at that ty of Denver; Albert S. Frost, Judge. price; that the witness informed Innes that Action by the Plattner Implement ComEppert would take it at $5,000. In addition pany against John S. Young and another.
From a judgment for plaintiff, defendants knowledge of the article purchased." There appeal. Affirmed.
is ample evidence in the record to warrant
the court in finding that the case came withThomas W. Lipscomb, for appellants.
in the exception. Brown, De Lappe & Sackman, for appellee.
Perceiving no error in the record, the judg
ment will be affirmed. MAXWELL, J. This appeal is from a
Affirmed. judgment of the county court, rendered upon an appeal from a justice court. The suit was
The CHIEF JUSTICE and CASWELL, J., to recover the amount of a promissory note
concur. given by appellants to appellee in payment of a farming implement. At the close of plaintiff's evidence defendants moved a nonsuit,
(41 Colo. 164) which was denied. This ruling is assigned DENVER LIVE STOCK COMMISSION CO.
V. PARKS. as error. The abstract of record does not embody this motion, so that we are unadvis
(Supreme Court of Colorado. Oct. 7, 1907.) ed as to the grounds upon which it was bas 1. REPLEVIN-DEMAND-TIME. ed, except as we gather the same from ar
In replevin, a demand, made after the be
ginning of the action, but prior to the execution pellant's brief, from which it seems that it
of the writ, is sufficient. was upon the ground that the incorporation
[Ed. Note.-For cases in point, see Cent. Dig. of plaintiff had not been proved. The note vol. 42, Replevin, SS 83-85.) sued upon was introduced in evidence, which 2. SAME-NECESSITY FOR DEMAND WHEN DErecited “The Plattner Implement Company, a
FENDANT CLAIMS OWNERSHIP.
In replevin, no proof of demand is neces('orporation duly organized under the laws of
sary where the defendant claims ownership and Colorado," as payee. A witness testified that right of possession. he was an officer of the Plattner Implement [Ed. Note.-For cases in point, see Cent. Dig. Company and saw the defendants sign the vol. 12, Replevin, § 88.] note. If the court erred in overruling the 3. JUSTICES OF THE PEACE-APPEAL-PRESERtion for a nonsuit, based upon the failure
VATION OF OBJECTIONS.
In replevin, where defendant gives a reof the evidence to establish plaintiff's cause
delivery bond, procures a change of venue, and of action, which we do not decide, such error contests the case on its merits before the justice cannot avail appellants upon this appeal, for
of the peace. he cannot urge want of demand the reason that both appellants testified to
for the first time in the county court on appeal. the execution of the note, which recites that
[Ed. Note.--For cases in point, see Cent. Dig.
vol. 31, Justices of the Peace, $ 513.] it was payable to "the Plattner Implement Company, a corporation duly organized under
Appeal from Larimer County Court; J. the laws of Colorado.” Horn v. Reitler, 15
Mack Mills, Judge. Colo. 316, 25 Pac. 501; D. & R. G. Ry. Co.
Action by the Denver Live Stock Commisv. Henderson, 10 Colo. 1, 13 Pac. 910; Weil v. sion Company against Cash Parks. From Nevitt, 18 Colo. 10, 31 Pac. 487. The case,
a judgment for defendant in the county court therefore, falls within the rule that defend on appeal from a justice court, plaintiff apants, having dealt with plaintiff in its cor
peals. Reversed and remanded. porate capacity, are estopped from denying This is an action in replevin commenced its legal existence. Holmes F. & F. Co. v. before a justice of the peace, and involves Com. Nat. Bank, 23 Colo. 210, 47 Pac. 289, the right to the possession of a span of mules and cases cited.
and a set of harness under the provisions of The defense was the failure of considera a chattel mortgage given to secure a promistion, in that there was a breach of warranty sory note executed by the appellee, defendant of the implement sold, for which the note below. The note was due and payable on was given. The abstract of the record con April 1, 1903. The action was commenced tains no evidence of an express warranty. on the 22d of April, 1903, and a writ of reThe rule of implied warranty relied upon is: plevin issued. On April 23d demand for pos"It is believed that the weight of authority session of the property was made on appellee. sustains the rule that where a dealer con The demand was refused, whereupon the writ tracts to supply an article in which he deals, was served and possession of the property to be applied to a particular purpose, so that taken by the constable. On April 24, 1903, the buyer trusts to the judgment or skill of a redelivery bond was approved, and the the dealer, there is an implied warranty that property redelivered to appellee. On motion it shall be reasonably fit for the purpose to of appellee for change of venue, the cause which it is to be applied.” 15 A. & E. Ency. was transferred to Hiram R. Smith, another · (2d Ed.) 1235. In the same paragraph of the justice of the peace, before whom the cause citation, at page 1236, an exception is thus was tried on its merits to a jury, and verdict stated: “This rule, of course, does not ex rendered in favor of appellee "that he was tend to cases where the purchaser and the entitled to the property," and judgment was seller have equal means or knowledge as to entered accordingly. From this judgment !). the fitness of the thing sold for the purpose pellant appealed to the county court. for which it is sold, or where the dealer in March 3, 1904, a trial was had in the county forms the buyer that he has no personal court to a jury. The appellaut, after prov.