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pending payment of the draft on the A. Co. for of May, 1891, conveyed to Springer all its price and freight. Plaintiff, a member of the A. Co., and its creditor already for money ad

property and assets, specifically including the vanced, took up the draft, and paid the demur

wire in store; such conveyance and sale to rage, and W., the A. Co.'s managing officer, become absolute if the company failed to placed the goods in store, as he testified, in pay and redeem within 15 days. The complaintiff's name. The warehouse books credited them to the A. Co. Plaintiff took judg

pany failed to pay within the time specified. ment against the A. Co. for his advances, in Appellee was sheriff of Las Animas county. cluding the amount paid for these goods, and On August 27, 1891, the Trinidad Waterthe A. Co. transferred him all its property by a conveyance, which became absolute on the

works Company and P. J. McMartin comA. Co.'s failure to redeem in 15 days. Plain

menced suit in Las Animas county by attiff testified that thereafter he notified a clerk tachments against the Acme Fence Company, at the warehouse that he would soon want the

which were levied upon the wire in store, goods shipped to his factory, and would then pay the charges on them. Held, that he had

and afterwards judgments were obtained, failed to show any delivery of said goods, "fol and appellee, as sheriff, was proceeding to lowed by an actual and continued change of sell the wire in satisfaction, when appellant possession," as against attaching creditors of the A. Co.

brought this suit in replevin, and took the 2. On an issue of change in possession of property. The trial was had to the court goods, testimony of the warehouseman of con without a jury, the only question tried being rersations with his predecessors at the time of

the title to the wire. The other facts were the transfer of the business to him as to the ownership of the goods, and his books, show

covered by stipulation. The court found for ing in whose name they stand, are competent the defendant, (appellee,) and the plaintiff evidence.

prosecuted an appeal to this court. Appeal from district court, Las Animas Except the general assignment that the county.

court erred in finding for the defendant, the Replevin by Charles Springer against L. M. only errors assigned are the admissions by Kreeger, sheriff of Las Animas county, for the court of the evidence of Forbes, presigoods seized by defendant on attachments. dent of the Forbes Mercantile Company, suc Judgment for defendant. Plaintiff appeals. cessor to the Brown-Nanzanares Company, Affirmed.

of conversations with the officers of the latNorthcutt & Franks, for appellant. Bo ter company in regard to the ownership of Sweeney and John A. Gordon, for appellee.

the wire in store at the time of the transfer,

and the admission in evidence of the books REED, J. In December, 1890, the Acme of the Forbes Company to show how it was Fence Company, doing business in New Mex held by it, and in whose name as owner; ico, ordered a lot of wire from the St. Louis the testimony establishing the fact that the Wire Mill Company. One hundred and eigh wire was stored in the name of the Acme ty-five coils, which, with the freight added, Fence Company with the Brown-Nanzanares were of the value of $869.50, were shipped Company, and as such was transferred to by the wire-mill company, consigned to the and held by its successor, the Forbes Com. Acme Fence Company at Trinidad, Colo. A pany. It was contended upon the trial and draft was drawn for the amount by the ship is urged in argument that appellant acquired per upon the consignee, which remained in title to the wire in March by payment of the hands of the bankers for collection until the draft of the St. Louis Company, the par. March 9, 1891. The wire remained in the ment of demurrage, and the acts of Wigbam, car and in possession of the railroad com vice president and treasurer of the Acme pany until that date, and demurrage was Company. Such contention cannot prevail. charged by the railroad company, amounting The goods were ordered by and consigned to to $105. Charles Springer (appellant) was a the Acme Company. The draft for the purmember of the Acme Fence Company. The chase and freight was drawn upon the comcompany was embarrassed,—had no money. pany. The company was embarrassed. The On that date Springer advanced the money draft remained three or four months unpaid and took up the draft. Harry Wigham, vice in the hands of the collecting agents, while president and treasurer of the Acme corpora the goods remained in store or possession tivn, went to Trinidad, and with money fur of the railroad company, accumulating de nished by Springer paid the $105 demurrage, murrage charges. At this point appellant and had the wire stored in the warehouse of came forward, took up the draft upon the the Brown-Nanzanares Company, where it company, paid the demurrage, and the goods remained. Subsequently the Brown-Nanzan were placed in store by Wigham, the vice ares Company was succeeded by the Forbes president and treasurer. As to whether or Mercantile Company, in the same building, not the goods were stored in the name of and the wire remained in its custody. The appellant, the evidence is unsatisfactory. Acme Company still being embarrassed, and Wigham testifies that they were, while the indebted to Springer for money advanced, warehouse books show that they were not. including the amount paid for the wire in No warehouse receipt was taken in the name store, in the sum of $6,223.39, Springer of appellant, but we deem this inquiry unimbrought suit against it, and obtained a judg- portant. It is said in argument "that plainment for that sum. The judgment remaining tiff, after some delay, paid said draft upon unpaid, the Acme Company, on the 23d day an agreement that said wire should be taken

and held by plaintiff until he was repaid the and that the title has passed out of the seller amount of the draft." We can find no such and into the purchaser." "When the subject agreement in the evidence of record. If such of the sale does not reasonably admit of an agreement was made, it was of no legal sig. actual delivery, it is sufficient if the vendes nificance to third parties who had no notice assume the control and dominion of the propof it. The money appears to have been ad erty, so as reasonably to indicate to all convanced like other moneys to the company, cerned the change of ownership.” That the paid to and disbursed by the executive officer decision has since been followed, see Wilcox of the company in its business. No corporate V. Jackson, 7 Colo. 521, 4 Pac. Rep. 966; Basaction was taken, no transfer of the goods singer v. Spangler, 9 Colo. 175, 10 Pac. Rep. made. Appellant could not, by the voluntary 809; Sweeney v. Coe, 12 Colo. 485, 21 Pac. advance of money and instructions to Wig Rep. 705; Herr v. Mercantile Co., 13 Colo. ham, change the ownership. One man can 406, 22 Pac. Rep. 770; Atchison v. Graham, not make a bargain of sale of the property 14 Colo. 217, 23 Pac. Rep. 876; Felt v. Cleg. of another to himself; and, even had Wig horn, 2 Colo. App. 4, 29 Pac. Rep. 813. It is ham directed the goods to be stored in the clear, even from the evidence of appellant, name of appellant, without further evidence that there was no change of possession, eiof change of ownership, the warehousemen ther actual or constructive, nor compliance were justified in disregarding it. That he did with the requirements of the statute, before not, by any act of the corporation, become the levying of the attachments, and as to the owner of the goods until about the 7th of creditors the sale was void. The evidence of June, is shown by the conveyance, subject to Forbes, president of the Forbes Mercantile defeasance by payment within 15 days, made Company, in whose possession the goods on the 23d of May. Prior to that time the were, also the books of the concern, were adtransactions appear to have been confined to missible in evidence upon the trial. The money advanced the company, until it aggre question being tried was whether an actual gated over $6,000. After default in payment change of possession of the goods, as requirand the expiration of 15 days, appellant might ed by statute, had taken place; and though, have become the legal owner by reducing perhaps, not conclusive, the testimony was the goods to his possession. Had there been competent to show whether or not there had a warehouse receipt, constructive possession been a change of the possession. The judgcould have been effected by its transfer with ment must be affirmed. notice to warehousemen; without a receipt, by the exhibition of his title, and a transfer upon the books of the warehouse. Neither was done. Taking the testimony of appel.

BEARD et al. v. BLILEY. lant as to what was done to change the pos (Court of Appeals of Colorado. Sept. 25, session, all we can find is the following: “I

1893.) came here to Trinidad on my way to Catskill SALE-FRAUDULENT REPRESENTATIONS - - SPECULAin June, shortly after the fifteen days had

TIVE OPINIONS-EVIDENCE. expired, as mentioned in that bill of sale,

1. Statements by the owner of a mining

lease to one about to purchase an interest that and inquired from a clerk in Brown-Nanzan

he was about to go east, and could dispose of ares' establishment about this wire; and I the lease at a profit, are speculative matters of told him I would soon want the wire shipped opinion, and resting on the future, and are to my factory at Catskill, and that I would

not such fraudulent statements as could in

validate the sale. then pay the charges on it.” Section 14 of 2. A statement that he and other lessors our statute of frauds is as follows: "Every had secured an extension of the lease is not of sale made by a vendor of goods and chattels

a character to vitiate the sale, where there

was an agreement for an extension which was in his possession or under his control, and afterwards indorsed on the lease. every assignment of goods and chattels, un. 3. A false statement that the mine was less the same be accompanied by an imme. paying expenses, a fact which the owner alone diate delivery, and be followed by an actual

had knowledge of, would render the sale void,

the statement being the inducement for the and continued change of possession of the purchase. things sold or assigned, shall be presumed to 4. In civil proceedings the measure of evi. be fraudulent and void, as against the cred

dence required to prove fraud must be suffi

cient to overcome the presumption of honesty. itors of the vendor, or the creditors of the person making such assignment, or subse

Appeal from district court, Pitkin county. quent purchasers in good faith, and this pre

Suit by Alexander Bliley against A. A. sumption shall be conclusive.” In regard to

Beard and others to restrain the foreclosure the construction and effect of this section, as

of a trust deed. Judgment for plaintiff. De said by Elbert, C. J., in Cook v. Mann, 6

fendants appeal. Affirmed. Colo. 21, "the books are full of decisions." Wilson & Salmon, for appellants. T. M. In that case it was said: "The vendee must S. Rhett, for appellee. take the actual possession, and the possession must be open, notorious, and unequivo REED, J. Appellant A. A. Beard had an cal, such as to apprise the community, or interest in a lease and bond upon a mine, those who are accustomed to deal with the and sold a portion of it to the appellee, for party, that the goods have changed hands, which appellee made his promissory nota

dated August 22, 1889, for $800, payable one is evident that it results from the misappliyear after date, with interest at 1 per cent. cation of the law of evidence, or it is apper month, and secured it by a trust deed parent that, through willful and criminal upon his property in the town of Aspen. prejudice or bias the finding is at variance The mine failed to pay, and, two or three with all the evidence in the case, courts months after the execution of the note, work have neither power nor inclination to invade was suspended, and the property abandoned the province of that branch of a trial court. by the lessees. After the maturity of the It is not enough that, on the printed testinote, it was assigned by A. A. Beard to his mony presented to a court of review, the wife, E. R. Beard. Appellant Donegan was court concludes, by the reading of the eritrustee in the deed of trust, and, at the in-dence, that the jury should have found ditstance of the Beards, proceeded to advertise ferently. The jury and witnesses are the property for sale to pay the money se brought together, and the jury are to concured by it, whereupon appellee brought suit sider, not only the matter testified, but the to restrain the sale of the property, alleging character and credibility of witnesses. It in the complaint that appellee fraudulently is their peculiar province, while one man's obtained the note and deed of trust by mis- evidence, when printed and filed in a court representations in regard to the value of the of review, may appear equally as truthful mining interest for which the note was and reliable as that of another, there may given, and the condition and product of the have been, upon the trial, circumstances or mine, and, in effect, that there was want of incidents rendering it absolutely unworthy consideration for the note; also that the of credit,-facts of which this court could note was assigned by A. A. Beard to his have no information; and when, as in this wife, E. R. Beard, without consideration, case, the only important facts rest upon the and in fact remained the property of A. A. contradictory and conflicting statements of Beard. The allegations of the complaint the two principals, if any finding is made were traversed in the answer, and upon the by the jury, one or the other must go to the issues so made a trial was had. A jury was wall. The finding as to credibility cannot called, and the two following questions of fact be reviewed in this court. The rule of both were submitted for its determination: "First. the supreme court and this court has been Did defendant A. A. Beard make the plain-frequently stated and reiterated that, where tiff, Bliley, the representations set forth in there is any legal competent evidence to susthe complaint in good faith? Second. Did tain the verdict, it will not be disturbed; plaintiff rely on the representations made to and, where the evidence is conflicting and him by said Beard, if so made?” The ques contradictory, the courts will not attempt to tions, though rather inartificially drawn, decide upon the credibility of witnesses or were sufficient to present the issues submit weight of evidence, but must adopt the conted (1) whether representations were made; clusions of the jury. The basis of the suit (2) whether they were accepted and acted upon which equitable relief was asked was upon by Bliley, and were the inducement that the note and deed of trust were obin the transaction, and whether true, and tained by fraudulent misrepresentations of made by Beard in good faith, or were know the value and condition of the mining propingly false and fraudulent. After hearing erty, for the purchase of which the note was the evidence of the respective parties, and given. “Actual or positive fraud consists in being properly charged by the court, the jury deception practiced in order to induce anreturned findings answering the first ques other to part with property, or to surrender tion in the negative, and the second in the some legal right, and which accomplishes affirmative, fully establishing the allegations the end designed. The deception must re of fraud in the complaint. The court adopt late to facts then existing, or which had ed the findings of the jury, and filed a de previously existed, and which were material creo perpetually restraining the defendants to the dealings between the parties in which from proceeding to collect the note, and that the deception was employed. In order to the trust deed made to secure it he canceled. render it actionable the following facts From such judgment and decree an appeal should appear: First, that the representawas prosecuted to this court.

tions were made as alleged; second, that It is contended in argument that the evi they were made in order to influence the dence was insufficient to warrant the finding plaintiff's conduct; third, that, relying upon of the jury, and that the court erred in them, the plaintiff did enter into a contract, adopting such findings and in decreeing the or otherwise act as was desired; fourth, that note void. This is the only ground relied the representations were untrue; fifth, that upon for a reversal. The province and du the plaintiff suffered damage from the ac ties of a jury are as well defined as that tion he was induced to take; and, sixth, that of the judge of the trial court or the judges this damage followed proximately the de of this court. The court had right and au ception." Cooley, Torts, 88 474, 475. "Fraud thority to submit questions of fact to the in equity properly includes all acts, omisjury, and, unless some legal principle is vio sions, and concealments by which an undue lated, and the verdict is the result of in. and unconscientious advantage is taken of competent and inadmissible evidence, or it another.” Story, Eq. Jur. | 187; 1 Fonbl

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L'q. bk. 1, c. de $ 3. In Green y. Nixon, 23 the plaintiff could gain no knowledge by an
Beav. 530, it was said: "Fraud implies a examination of the property; and that sup-
willful act on the part of one, whereby an. posed fact, together with the expectation
other is sought to be deprived, by unjustifi- of profits from more extensive and econom.
able means, of what he is entitled to." In ical work, must be regarded as the induce.
Detroit v. Weber, 20 Mich. 284, it was said: ment to purchase. The latter statement
"Fraud consists in a person being induced that no assessments would be required, bei
to act to his prejudice by untruthful state in the future, must be regarded as specu-
ments made by another upon whom he had | lative, and an expression of opinion, and
right to rely, and whose duty it was to state could not of itself be the basis of an ac-
the case truly." See, also, Sellar v. Clelland, tion.
2 Colo. 532; Byard v. Holmes, 34 N. J. Law, The evidence in regard to the statement

that the mine was paying expenses was con-
Taking the well-settled rule of law that tradictory, but the jury evidently found the
the fraudulent statements must relate to fact for the plaintiff. That it was false,
facts then existing, or which had previously and was not, and never had been, paying
existed, and which were material, etc., we expenses, was fully established by uncontra-
find two of the alleged representations, which dicted testimony, and the fact that plaintiff,
were speculative matters of opinion, and for his small interest, was charged some
resting in the future, withdrawn from con. $90 per month for the first two months,
sideration, viz.: “That he, Beard, was about shows that it fell far short of paying ex-
to go east soon, and could and would dis penses. The sale for less than cost, and
pose of the lease at large profit to all in the sale to Silver of another interest at about
terested;" “that he was about to put ma the same time, at a reduced price, payment
chinery on the premises, and wanted the to be made in clothing, were circumstances
plaintiff to set it up, and run the same," leav going far to establish the willful falsity of
ing only the following: “First, that the lease the statements and deliberate fraud of the
was paying expenses, and that plaintiff defendants.
would not have a dollar to pay in the way It is urged in argument that plaintiff's case
of assessment; second, that he and the other failed for want of proof, and that the court
lessors had secured from the owners an ex erred in finding for the plaintiff, and the fol-
tension of the lease of the mine." Taking lowing is cited from Development Co. v.
up the latter first, we find the statement | Silva, 125 U. S. 247, 8 Sup. Ct. Rep. 881:
to have been substantially, though perhaps "The answer of the defendant is direct, pos-
not technically, correct. There had been no itive, and unequivocal in its denials of the
written extension, but there was an existing allegations of the bill, and, as an answer
agreement for one which was afterwards on oath is not waived unless these denials
indorsed upon it and executed. It is con are disproved by evidence of greater weight
tended that the statement was false, as than the testimony of one witness, or by
Beard represented that the lease was to be that of one witness with corroborating cir-
extended according to its terms, whereas it cumstances, the complainant will not be en-
contained requirements more burdensome titled to a decree; and this effect of the de-
than the original. It is only necessary to fendant's answer is not weakened by the
say that nothing of the kind appears in the fact that the equity of the complainant's bill
written indorsement extending the lease. is the allegation of fraud. Vigel v. Hopp,
One witness testified there was to be 50 feet 104 U. S. 41; Story, Eq. Jur. § 1528; Dan-
of “dead work" done, but that could not add iell, Ch. Pr. 814. The burden of proof is
to or change the written agreement. The on the complainant; and, unless he brings
admission of the testimony is urged as er-

evidence sufficient to overcome the natural ror. Technically it probably should not have presumption of fair dealing and honesty, been allowed, but I cannot see how any one a court of equity will not be justified in was prejudiced by it, and it appearing that, setting aside a contract on the ground of before the expiration of the original lease, fraudulent representations.” It is a wellplaintiff abandoned and ceased to prosecute

known fact that the rules, practice, and rework on the mine, because of losses sus quirements of the federal courts are peculiar tained, we are at a loss to understand what to those courts, based upon a series of rules Diertinency there was in the whole inquiry adopted from the old English equity practice, in regard to the truth or falsity of the state and pertain to purely equitable cases. Those ment, when we apply the rule that, in order rules have no place in practice in the state to be actionable, the statement must have courts, and cannot prevail here. The modbeen such that "the plaintiff suffered damage ern and controlling doctrine in state courts by reason of it." No such injury was shown is stated as follows, (Cooley, Torts, $8556, or attempted. The only remaining alleged 557:) “Fraud is never presumed, and the false statements were that the lease was party alleging and relying upon it must paying expenses, and plaintiff would have prove it. This, however, is one of those no assessments to pay. The first was a mat rules of law which is to be applied with ter of fact, resting of necessity within the caution and circumspection. So far as it knowledge of the defendants, and of which goes, it is based on a principle which has

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3. The provision of the act for facilitating the construction of the canal by the sale of alternate sections of the school land lying un. der the canal violates Const. art. 9, § 3, inhibiting the use of the public school fund for any purpose other than the maintenance of the schools.

4. The provision of the act authorizing a board of control for the canal to act with the state board of land commissioners in the sale of certain state lands is not a regulation within, but violates, Const. art. 9, § 9, lodging in the land commissioners "control and disposition of the public lands under such regulations as may be prescribed by law."

5. The object of the act being to expedite the completion of a canal authorized and sanetioned by previous acts, the provision for issuance of certificates to be accepted in pas. ment of the carriage of water may stand, though that as to land is invalid.

no more application to frauds than any other subject of judicial inquiry. It amounts but to this: that a contract, honest and lawful on its face, must be treated as such until It is shown to be otherwise by evidence of some kind, either positive or circumstantial." Fraud is therefore as properly made out by marshaling the circumstances surrounding the transaction, and deducing therefrom the fraudulent purpose, when it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive; and, indeed, circumstantial proof in most cases can alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy and circumvention, and is to be traced, not in the open proclamation of the wrongdoer's purpose, but by the indications of covered tracks and studious concealments. And while it is often said that, to justify the imputation of fraud, the facts must be such as are not explicable on any other hypothesis, yet this can mean no more than this: that the court or jury should be cautious in deducing the fraudulent purpose; for whatever satisfies the mind and conscience that fraud has been practiced is sufficient." It is the well-settled doctrine that in all cases the presumption is in favor of honesty, and in civil proceedings fraud requires no higher measure of proof tuan is required in many other cases. It must be sufficient to overcome the legal presumption of honesty. See Hill v. Reifsnider, 46 MU. 555; Baldwin V. Buckland, 11 Mich. 389; Bowden V. Bowden, 75 N. 143; Bank V. Lempriere, L. R. 4 P. C. 572; Smith v. Chadwick, 9 App. Cas. 187; Hildreth v. Sands, 2 Johns. Ch. 35; DeVoe v. Brandt, 53 N. Y. 462; Kaine v. Weigley, 22 Pa. St. 179. In our view of the case, no serious error occurred upon the trial. The facts necessary to constitute a cause of action having been found by a jury, the finding and decree of the court were warranted, and should be affirmed.

The facts fully appear in the following statement by HAYT, O. J.:

The opinion of the court was rendered in response to interrogatories submitted by Lieutenant Governor Nichols, as acting goternor. The questions relate to the constitutionality of an act of the last general assembly entitled “An act creating a board of control for the completion and construction of State Canal No. 1," etc. The inception of the legislation with reference to State Canal No. 1 dates back to an act to be found in the Session Laws of 1889, p. 285. This act provides that for the purpose of reclaiming, by irrigation, state and other lands, and for the purpose of furnishing work for the convicts confined in the state penitentiary, the board of commissioners of the state penitentiary is authorized to locate, aequire, and construct, in the name and for the use of the state of Colorado, ditches, canals, reservoirs, and feeders, for irrigating and domestic purposes, and for that pur. pose may use the labor of persons confineci, or that may be confined, as convicts in the state penitentiary at Canon City. Section 2 provides that the state engineer, under the direction of the board, shall locate such ditch or canal, of sufficient capacity to cover 50,000 acres of good, arable land between Canon City and Pueblo. This act made an appropriation from the general revenue of $10,000, for the purpose of locating, and pay. ing for powder, fuse, tools, teams, and materials used in the construction of, said ditches, etc., and it authorized the board to receive subscriptions and advancements from persons owning land along the line of said ditch, for the purpose of aiding in its construction. Some progress seems to have been made under this act of 1889, and in the year 1891 the legislature made a further appropriation of $50,000 for the purpose of continuing the construction of the canal. This act provided that "the said sum shall be used for the purchase of materials, tools and explosives, and the employment of ex. tra overseers, and guards required in the construction of said canal, and for the more definite and economical location of the line of the same, and for no other purpose."



1. Act April 17, 1893, providing for payment of materials and labor in the completion of a state canal by certificates of indebtedness to be issued by the state auditor, which may be accepted by the state in payment for carriage of water or for lands, but shall not be a claim against the state, cannot violate the constitutional provision limiting state indebtedness, as it permits of no such indebtedness.

2. The provision that the certificates may be accepted by the state in payment of lands, not being limited to lands which might be used for canal purposes, violates Const. art. 9, § 10, providing that the lands shall be held in trust for the objects for which they were granted to the state.

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