the means of knowledge for a sufficient time to have remedied the defect. The phrase "means of knowledge" includes cases of neglect to anticipate and prevent certain defects mentioned above.

IN ACTION AGAINST CITY FOR INJURY resulting from defective sidewalk, it is within the province of the jury to determine whether or not the city or its proper officer had personal knowledge of the defect for a sufficient length of time previous to the injury to make the city liable.

ACTION against a city for damages. Dean, while walking along the sidewalk in the daytime, stepped upon the covering to a coal-hole, causing it to tip, and allowing one of his legs to pass through in such manner as to cause an injury resulting in serious personal consequences. There was nothing about the covering of the coal-hole to indicate danger to the careful or casual observer, and the injury arose from neglect to properly secure such covering. Dean at the time of receiving the injury was exercising reasonable care and caution. The chief of police of the city knew of the defect several months before the accident happened, and had notified and instructed the tenants to have the defect cured, he had also mentioned it to the policeman stationed on that beat. The other facts appear from the opinion.

F. Tilford, R. H. Gilmore, J. F. Shaffroth, and J. C. Stallcup, for the appellant.

Browne and Putnam, for the appellee.

By Court, HELM, J. It was the duty of the municipal authorities of Denver to exercise ordinary care in keeping the sidewalks free from defects and obstructions. The conclusion reached in City v. Dunsmore, 7 Col. 328, with reference to streets, applies with equal fitness to the subject of sidewalks, and the reasons there given need not be restated. A failure to perform this duty might lay the foundation of municipal liability. But since the city did not construct the sidewalk, coal-hole, or cap here in question, and the accident was not occasioned by any act of the city, its officers or agents, before plaintiff could recover damages from it for the injury sustained, he was required to show that the corporation had notice of the defective cap; also that it was in possession of such notice a sufficient length of time before the accident to have cured the defect and prevented the injury. Such notice might have been either actual or constructive.

The ninth instruction given in the case announces two propositions on the subject of notice: 1. That the knowledge,

concerning defects like the one in question, of the police of the city is not actual notice to the corporation; 2. That such knowledge, if gained in pursuance of the officer's duties and employment, may be the means of knowledge, so as to charge the municipality with constructive notice. In our judgment, both propositions are wrong. Whether a certain matter is in the line of a particular officer's employment, is to be determined by construction of the statute or ordinance prescribing his duties; hence such determination is a question of law. Without discussion, but not without careful examination, we are prepared to hold that the ordinance before us sufficiently charges the chief of police with the care of coal-holes and caps, as well as other obstructions, in or upon the sidewalks. Hence the court below should have instructed the jury that if the officer had personal knowledge of the defective cap the city should be charged with actual notice; and that if such actual notice existed for a length of time reasonably sufficient to have had the cap properly bolted before the accident, they might find for plaintiff, provided other essential questions of fact were, upon the evidence, resolved by them in his favor. But the knowledge of the chief of police could not, in and of itself, be constructive notice to the city; nor could the city be charged with this kind of notice by the communication of such knowledge to others. If information of a latent defect possessed by the chief of police were not acquired in the line of his official employment, but were communicated by him to some officer charged with the duty of repairing, or causing to be repaired, such defects, the notice to the city would be actual, and not constructive; while if, in such case, the chief repeated the information to private citizens, or to other officials, whose duties, like his, in no way related to the matter, the city would, in law, be charged thereby with no notice at all, either actual or constructive: 1 Dillon on Municipal Corporations, note 1, sec. 237, and cases; note to Bank v. Whitehead, 36 Am. Dec. 189; 2 Dillon on Municipal Corporations, sec. 1025, and notes.

There seem to be but two ways in which a municipal corporation can be charged with constructive notice of defects in its sidewalks so as to be held liable for injuries occasioned thereby, there being no municipal responsibility in the original construction, and no affirmative municipal acts through which the defects are produced: 1. Where an exercise of ordinary care on its part involves the anticipation of defects that

are the natural and legitimate result of use and climatic influences. A neglect of the proper officer to make a sufficiently frequent and careful examination of a particular structure is sometimes held to charge the city with constructive notice, even though the defect be latent. Illustrating this kind of constructive notices are such cases as Furnell v. City, 20 Minn. 117, and Rapho and West Hempfield Tps. v. Moore, 68 Pa. St. 404, where the respective injuries resulted from decayed stringers under the sidewalk and rotten timbers in the bridge. The timbers were sound when put into the sidewalk and bridge, but both had been in use so long that decay might reasonably be expected. The defects in both instances were only discoverable by a skilled and careful inspection. It is not contended that the principle above stated, underlying this class of cases, is applicable to the case at bar. 2. Constructive notice also exists where the corporation has had the means of knowledge for a sufficient time to have remedied the defect. The finding of the jury for plaintiff in the case at bar must, under the ninth instruction, have been based upon the proposition that the knowledge of Lomery was means of knowledge to the city, and that the city was thereby charged with constructive notice of the defective cap. It may be that the phrase "means of knowledge" fairly includes cases of neglect to anticipate and prevent certain defects, cases covered by the foregoing discussion; but with that exception, we think the phrase applicable only to visible defects or obstructions,-defects or obstructions that are open and notorious; "so notorious as to be observable by all": Shearman and Redfield on Negligence, secs. 148, 407, and cases; 2 Dillon on Municipal Corporations, note 3, sec. 1026, and cases; Weisenberg v. City of Appelton, 7 Am. Rep. 43, note, and cases. Illustrating the inference of notice through "means of knowledge" are cases like that of Dewey v. City, 15 Mich. 306, where the injury resulted from an uncovered coal-hole, and that of Mayor v. Sheffield, 4 Wall. 189, where it was caused by a stump left projecting through the sidewalk.

But it is conceded by both parties to this case that the defect now under consideration was latent. In the undisputed language of the complaint, "there was nothing in the appearance of the coal-hole or its surroundings to indicate danger to the most careful observer." Therefore, aside from the fact that the knowledge of Lomery, as a city official, could not be means of knowledge to the city, it cannot be said that there

was anything else before the jury to constitute such means of knowledge.

We are not permitted to hold that the errors of the court in the ninth instruction were without prejudice to appellant. Though, under a proper statement of the law, the jury might perhaps have found the city charged with actual notice, it is not for us to say that such must have been their conclusion. It was their province to determine whether or not the chief of police did have personal knowledge of the defective cap, and also whether such knowledge, if found to exist, had been acquired a sufficient length of time previous to the accident: 2 Dillon on Municipal Corporations, sec. 1026. It does not necessarily follow, because the jury, under the law as submitted to them, found from the conduct and declarations of Lomery and others that the city had means of knowledge and therefore constructive notice, that under a proper instruction they would have Lomery possessed of adequate information for a sufficient period to charge the city with actual notice.

For the errors mentioned, judgment must be reversed, and it is unnecessary to discuss the remaining assignments.

WHERE CITY HAS POWER TO REPAIR SIDEWALK, and has allowed the same, unsafe in construction and built without its authority, to so remain for a year, it is liable for injury caused thereby: Saulsbury v. Village of Ithaca, 46 Am. Rep. 122.

IN ACTION AGAINST CITY FOR DAMAGES FOR INJURY sustained from a defective highway, it must be shown that the city authorities had notice of the defect, or that it was of such nature and had existed for such a length of time that knowledge on their part must be presumed: Requa v. City of Rochester, 6 Am. Rep. 52; Goodnough v. Oshkosh, 1 Id. 202; see Colley v. Westbrook, 2 Id. 30.

NOTICE TO OFFICER OF DEFECT IN STREET is notice to the city: City of Logansport v. Justice, 39 Am. Rep. 79, and note 84.

LIABILITY OF CITY TO KEEP STREETS IN REPAIR: Browning v. City of Springfield, 63 Am. Dec. 345, and note 350-357.

CALDWELL V. DAVIS.

[10 COLORADO, 481.]

RELATION EXISTING BETWEEN PARTNERS IS ONE OF TRUST and confidence; and when dealing with each other in relation to the partnership matters, they are required to make full disclosure of all material facts within their knowledge in any way relating to the partnership affairs.

COMMUNITY OF INTEREST EXISTS BETWEEN PARTNERS, producing a community of duty.

WHEN CONTRACTING BETWEEN THEMSELVES, PARTNERS ARE REQUIRED to show the utmost good faith toward each other, and the concealment of material facts by one, which he should disclose to the other, is a fraud for which the contract may be canceled.

TO ENTITLE PARTY TO PROTECTION accorded to privileged communications, they must be made to the counsel, attorney, or solicitor acting, for the time being, in the character of legal adviser, and must be made by the client for the purpose of professional advice or aid upon the subject of his rights and liabilities.

ACTION to set aside and to have declared fraudulent and void a certain partnership contract. The facts are sufficiently stated in the opinion.

T. J. O'Donnell, for the appellant.

J. F. Vaile, for the appellee.

RISING, C. The numerous assignments of error will not be separately discussed; but under a general consideration of the case, the rulings of the court below, upon which the errors are assigned, will be passed upon.

The first and most important question for consideration is that of the sufficiency of the evidence to entitle the appellant to the relief demanded. Appellant bases his right of relief upon the conduct of the appellee; and how far the conduct of the appellee affects such right must be determined by the relations of the parties to each other. The plaintiff alleges that they were copartners for the purpose of buying and selling an option on certain mining claims. Under the decision in Kayser v. Maugham, 8 Col. 232, the evidence in this case fully establishes the allegation. The relation existing between partners is one of trust and confidence: Pomeroy's Eq. Jur., sec. 963. Partners, when dealing with each other in relation to partnership matters, are required to make full disclosure of all material facts within their knowledge, in any way relating to the partnership affairs. A community of interest exists between the partners, and a community of interest produces a community. of duty. This community of interest, by the terms of the