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Neely v. Rood, 54 Mich. 134, 19 N. W. Rep., specific remedy against any part of his es920; Pierce v. Holzer, 65 Mich. 263, 32 N. W. tate in his insolvency, but they must come Rep. 431. In the case at bar no evidence was in pari passu with the other creditors, and introduced that tended to show in the slight- prove against the trustee's estate for the est degree that the money sought to be re amount due them. This rule has been as covered was invested in any of the property steadily adhered to by the courts both of that came into the possession of appellants. this country and of England as any rule On the contrary, evidence was introduced by which has ever been adopted for the protecthem that all the property of which their in- tion of the general creditors of a bankrupt testate died seised was owned by him prior or of an insolvent." Upon a careful examto July 2, 1888, or was property that he had ination of the cases cited by appellee, we received in exchange for other property that find nothing in conflict with the rule that, in he owned prior to that time. Upon proof order to subject a private estate of a defaultalone that Reid, as county treasurer, had ing trustee to the payment of the trust fund collected the funds in controversy, and that that has been by him wrongfully converted, they had not been applied to the use of the while it is not necessary to trace such funds county during his lifetime, nor turned over into any particular property, it must be since his death, the court below held that the clearly shown that it went into, and was failure to account for its disposition created used for, the benefit of such estate. The a conclusive presumption that it was com

rule is well established that, to enforce a mingled with Reid's private assets, and ren- constructive or resulting trust the facts dered such assets subject to its "payment. from which sueh trust is claimed to arise The case of McLeod v. Evans, 66 Wis. 401, must be clearly alleged, and must be proved 28 N. W. Rep. 173, 214, was relied on as sus- with clearness and certainty. 2 Pom. Eq. taining this conclusion. That decision was Jur. § 1058; Perry, Trusts, § 137; Bank v. rendered by a divided court. The majority Campbell, 2 Colo. App. 271, 30 Pac. Rep. opinion, if not a departure from, very much 357; Phillips v. Overfield, 100 Mo. 466, 13 S. enlarges, the rule very generally announced W. Rep. 705. Tested by this rule, the evi. in the adjudicated cases, and, as correctly dence in this case is clearly insufficient to stated by Judge Cassoday in his dissenting establish appellee's right to recover in this opiniop: "The mere wrongful conversion of

action. the draft by Hodges certainly gave the

As this case may be retried, we notice plaintiff no equitable lien upon property be-briefly the errors assigned upon the admislonging to bim prior to such conversion, nor sion and rejection of certain evidence. The upon assets subsequently acquired from court permitted, over the objection of appel sources entirely outside, and independent of, lants, the witness Weaver to testify to stateand wholly foreign to, the draft or the pro- ments made by defendant Coston to the ceeds of it. To say that it does is to hold

commissioners to the effect that the assets in that such wrongful conversion of itself gave

the hands of the administrator were suffithe plaintiff a preference over all other cred- cient to pay all liabilities against the estate, itors, regardless of what became of the draft and that, if a sufficient time was given them or the proceeds of it. I am not aware of any to realize on personal property, they could adjudicated case sanctioning such a prefer- pay off the indebtedness claimed by the ence. An equitable lien exists only when the county; that the assets were figured up, and trust money is directly or indirectly traceable also the liabilities, to show that there would to the fund sought to be charged.” More be sufficient. We are unable to perceive over, the facts in that case were dissimilar wherein this evidence was relevant. It could from those disclosed in the case before us, throw no light upon the merits of the controand furnished some foundation for the claim versy, or in any way aid the court in arriving that the trust money was mixed with pri- at any legal or equitable conclusion involved vate funds. It was shown that Hodges was in the action. It was clearly inadmissible. engaged in the business of banking; that, The reports of the committees appointed through drafts drawn on the Chicago bank, by the district court, in pursuance of the the proceeds of the converted draft came in- statute, to examine the books of the treasto his hands in the course of his business as urer, offered by appellants, were properly rea banker, and were used by him for the jected. The facts sought to be established by benefit of his estate. In the case of Sher- them could not be proven in that way. While wood v. Bank, (Mich.) 53 N. W. Rep. 923, the individuals composing such committee Judge Durand, after citing cases in point, might testify as to the amount of money said: “But in all these cases it is held that which they found on hand at the time of the fund must be clearly traced into the hands their investigation, the reports themselves of the person sought to be charged, and that were clearly inadmissible to prove such fact. if the trust property does not remain, but For the reasons given in the foregoing opinbas been made way with by the trustee, the ion, the judgment of the court below must cestuis que trustent have no longer any be reversed.

verse party, as follows: In case the fois CITY OF PUEBLO v. JACKSON. ment be for the payment of money, sod (Court of Appeals of Colorado. Oct. 24, 1893.) against the party appealing, the undertaking APPEAL-BOND-MUNICIPAL CORPORATIONS -Con

shall be in double the amount of the jocs STRUCTION OF STATUTES.

ment, or decree, appealed from, condidade Mills' Ann. St. § 4444, provides that in for the prosecution of the appeal, with all actions, suits, and proceedings in any court fect and without delay, and for the payment in the state in which a municipal corporation is

of all costs, and whatever judgment may be a party it may take an appeal, and have a writ of error made a supersedeas, without giving

awarded against the party so appealing. as bond. Section 1086, shortly afterwards enact- the trial or dismissal of said appeal in the ed at the same session of the legislature, pro

appellate court, and for the payment of the viding for appeals from the county to the district court, requires a bond to be filed as a pre Judgment appealed from, in case said aprequisite, making no exceptions. Civil Code, speal shall be dismissed; and in case the 395, afterwards enacted at the same session, judgment, or decree, appealed from be in relates to appeals to the supreme court only, and provides that when a municipal corpora

favor of the party appealing, or shall not tion is appellant, the court shall direct a stay

be for the payment of money, the penalty of execution without filing a supersedeas of the undertaking shall be in such sum as undertaking. Held, that section 4444 applies only to appeals to and writs of error from

the county court shall deem sufficient to the supreme court, and, where a municipal cor- cover costs, expenses, and damages, and be poration appeals from a county to the district conditioned that the party appealing shall court, it must file a bond within the time pre- abide, fulfill and perform whatever jude scribed by section 1086.

ment may be rendered against him in that Appeal from district court, Pueblo county. cause by the district court, and for the pas.

Action by P. Jackson against the city of ment of all damages which the opposite Pueblo, commenced in the county court.

party may sustain by reason of such appeal, There was a judgment for plaintiff, and de and the delay incident thereto, and for the fendant appealed to the district court. The payment of costs." Sess. Laws 1855, p. 158; appeal was dismissed, and defendant ap- | Mills' Ann. St. § 1086. No order appears, peals. Affirmed.

extending the time. By the terms of this M. G. Saunders, City Atty., for appellant. section, the bond in question was filed too McFeely & McAliney and A. W. Arrington,

late. This is not disputed by appellant, but for appellee.

it is insisted in its behalf that it, being :

municipal corporation, was not required to THOMSON, J. Appellee had judgment give bond in order to make its appeal; and against appellant in the county court. The that, therefore, the time within which the cause was heard, and final judgment ren- bond was filed, or whether a bond was given dered, on the 28th day of January, 1892. at all, is immaterial; and in support of this Appellant gave notice of appeal to the dis- contention reliance is had upon section 1 of trict court. Its appeal bond was filed and an act of the general assembly, approved approved February 13, 1892, sixteen days March 25, 1885, which reads as follows: after judgment rendered. The transcript "Section 1. That in all actions, suits and was filed in the district court, and the ap- proceedings in any court in this state, in peal dismissed, because the bond was not which a municipal corporation of this state filed within 10 days after the rendition of shall be a party, such municipal corporation the judgment, no order having been made may take an appeal and have a writ of error by the court extending such time. Section made a supersedeas, as now provided by 2 of an act relating to appeals from county law, without giving bond." Sess. Laws courts to district courts, approved April 14, 1885, p. 369; Mills' Ann. St. § 4444. It will 1885, provides as follows: "Sec. 2. No ap- be observed that the passage of this act was peal shall be allowed, in any case, unless the prior in point of time to the passage of the act following requisites be complied with: First. containing section 1086. Mills' Ann. St., which The appeal must be made within ten days we have quoted. If there is a conflict be after the judgment [is] rendered, or when tween the two sections, the one which is judgment is by default or nonsuit within later in time will operate as a repeal of the ten days after the refusal of the county other, in so far as the inconsistency exists. court to set aside the default, or nonsuit, Section 1086 is peremptory in its language, and grant a new trial: provided, however, and does not allow an appeal from the counthat the county court may, at any time, ty to the district court in any case whaterer, within the period above limited, upon good unless the prescribed requisites be complied cause shown, extend the time for an appeal. with; while section 4414 permits appeals by Second. The appellant, or some person for municipal corporations without compliance him, together with one or more sufficient with such requisites. Whatever effect the sureties, to be approved by the judge, or legislature may have intended section 1086 clerk, of said court, must, within the time to have upon section 4444, it, being a later above limited, or within such further rea- enactment, would govern in this case; and sonable time as shall be fixed by the court, the giving of the bond within the time speci. enter into an undertaking, payable to the ad- fied would be essential to the perfection of

court

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the appeal. But we do not think there is Code, $ 395, is conclusive that it did not in. any necessary inconsistency between the two tend its repeal; and in providing the method sections. The phraseology of section 4444 | by which the right granted could be made

is not inconsistent with the assumption that available in appeals to the supreme court, be the appeal there mentioned is an appeal and failing to make such provision in any **** from a county or district court to the su- other class of appeals, it clearly indicated 12: preme court. The section provides that a that it regarded section 4444 as applicable

* municipal corporation may take an appeal only in cases of appeal to the supreme court. ** and have a writ of error made a superse Until the enactment of section 4444, munici deas, without giving bond; and thus con- ipal corporations were, in the matter of da nects “appeal" and "writ of error" in such appeals, upon the same footing with private in the manner that they would both seem to have corporations and individuals. They could po reference to the same class of cases, viz. take no appeal to any court without giving

cases which are reviewable for error. There bond. That section changed the existing cre is no writ of error fom a district to a county law in respect of appeals to the supreme

Cases go from the latter to the for- court, leaving all other appeals in the same mer by appeal only. They are not reviewed situation, and subject to the same require in the district court, but are tried de novo, i ments as before; and section 1086 re-enactin precisely the same manner as if they had ed the antecedent law relating to appeals been originally commenced there; so that from county to district courts. In this case the language of section 4444 would not ap- an appeal bond, given within the time limpear to fit a case of appeal from the county ited in the latter section, was essential to to the district court. In construing a stat- the appeal. The statutory requirement in ute the object is to arrive at the intention this particular not having been complied of the legislature in enacting it; and if, up- with, the appeal was properly dismissed, and on its face, that intention is doubtful, then the judgment will therefore be affirmed. means outside of the statute may be employed to reach the desired result. Other legislation, affecting the same subject-matter, is one of the means by which this end UNION PAC., D. & G. RY, Co. v. Mcmay be attained; and it may so far aid us

CARTY. in ascertaining the legislative intent that the (Court of Appeals of Colorado. Oct. 24, 1893.) difficulty encountered in the statute itself is

SPECIAL AGENCY-RECEIPT. readily obviated. The following is section 1. A contractor for work in the construction 24 of an act entitled “An act in relation to of a railroad has, under a direction of the road's appeals to the supreme court, and concern

division superintendent to order of plaintiff

stone to be furnished to the railroad company, ing the jurisdiction thereof and practice power to bind the company by a purchase of therein:" "Sec. 24. The trial court or judge such stone from plaintiff. may, in its discretion, dispense with or limit

2. A receipt for money, recited to be "in

full settlement of account as follows: 40 cubic the security required by this act when the

yards stone @ $4.50 per yard,” is not a reappellant is an executor, administrator, trus- ceipt in full for anything further than the stone tee, or other person acting in another's right. specified. When a municipal corporation is the appel- Appeal from Pueblo county court.

lant, the court or judge shall direct a stay Action by C. F. McCarty against the Union : of execution after appeal, upon the motion Pacific, Denver & Gulf Railway Comʻpany. Auto of the appellant, without filing a superse Judgment for plaintiff. Defendant appeals.

deas undertaking." Sess. Laws 1883, p. 355; | Affirmed. Civil Code, 395. This section provides the

Teller, Orahood & Morgan and Betts & manner in which a municipal corporation

Vates, for appellant. S. G. Spencer and Coan may make the right granted to it by section

& Griggs, for appellee. 4444 effective, and perfect its appeal to the supreme court without giving bond. There REED, J. Appellee brought this action is nowhere any legislation making such pro- originally before a justice of the peace, claimvision in the case of an appeal from a coun- ing the sum of $186.10, balance due for stove ty court to a district court, or in the case of alleged to have been delivered to appellant. any appeal, except to the supreme court. An appeal was taken to the county court; All of the three sections we have quoted case tried by the court without a jury, re were enacted at the same session of the sulting in a judgment for $171.81. It aplegislature. Section 1086 had been enacted pears that one J. H. Naughton had a conbut a few days when section 4444 was tract for bridge and stone work on the line enacted. If the legislature had regarded of appellant's road. He ordered the stone this section as in any way inconsistent with from plaintiff at the agreed price of $4.54 section 1086, and had intended by it to re per cubic yard, the railway company to furpeal, amend, or modify section 1086, we nish transportation. It was estimated that would expect to find some reference to the 14 car loads would be required. After seved section, indicative of such intention, in the car loads had been shipped to Naughton at language of section 4444. The enactment of Denver, he notified appellee, by wire, to ship stone until further orders. It ap

tion for . youcher faror of

pears that four cart loads, bol ten cubie yards part so named above anche senda de

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each, were used by Naughton; the remain. Respt. etc., J. H. Naughton. ing three cars were not used; and it is alleged "This is 0. K. G. A. Armstrong, Supt B. by appellant that the stone was not received and B. by the company. By the evidence, no reason "Authorized, examined, and found correct is given for not receiving and 'paying for the Examined and approved B. W. Grrer, other three cars. About a year later, -OC- Supt." tober 10, 1889,-the company paid appeilce There was no contract made, in writing $180, being the price of the four cars used, Naughton testifies to the contract made with and appellee executed the following receipt: Grover, whereby the appellant corporation "$180.00. Pueblo, Colo., Oct. 10th, 1889. Re was to furnish the stone; he to furnish line, ceived of the Denver, Texas & Fort Worth cement, and other material, and do the works Railroad Co. one hundred and eighty' n0-100 He also testifies that, under the instructious dollars, in full settlement of account as fol- of Grover to order the stone from appellee, lows: Dated Oct. 2, 1898. 40 cubic yards he agreed upon the price, and ordered it. It stone @ $4.50 per yard. Audited bills No. is claimed in argument that Naughton, be 1,553. No.

No.

Local Treas. ing only a contractor, was not the agent of check No. 5,605.

No.

(Sign the company to make the purchase, and could here) O. F. McCarty. I. P. 295.” The judg- not bind the company by any such contract ment being for the remaining three cars of If the testimony of Naughton is to be be stone, and interest on the same, numerous lieved, which it erideutly was by the court, errors are assigned of record, the contention it certainly was a special agency for that of appellant being-First, that it was not re specific purpose. By the orders and instruil sponsible from the fact that Naughton was tions of Grover to purchase the stone for to furnish the stone himself, and all material,

and on behalf of the appellant corporation, and do the work; second, that he was not the agency need not have been general; and the agent of the company in the transaction Grover, who is authority on the question, with the appellee; third, that the coul!! erred had full •power to delegate the purchase of in finding that the receipt of October 10th the stone to Naughton, and designate the was not a receipt in full of all demands by party from whom it should be purchased: McCarty, as against the company. The other and, in so far as this specific agency tras errors assigned are not deemed of sufficient created for the single act, the company importance to warrant examination at any would be held for the performance. The length; are far more technical than sub. conflict of testimony was so marked that it stantial.

was impossible to harmonize it, and all the Testimony in the case is very conflicting. | court could do was to give credit to one There is no question in regard to the seven party, and disbelieve the other. Under sucb cars having been shipped over the Atchison, circumstances, the finding of questions of Topeka & Santa Fe road from the quarry to fact by the court will not be disturbed, on the appellant corporation, or of the receipt of review in this court, but will be taken as the cars by it, and its payment to the Atchi- found. This rule has been announced so fra son company of the freight. B. W. Grover, quently that it is hardly worth while for who was division superintendent of that di- counsel to insist upon a reversal by reason of vision of the appellant's line on which the superior weight of testimony. stone was used, testifies that Naughton, the The position taken that the receipt was a contractor, was to furnish all material, and receipt in full of all demands, and operated the railroad company to transport it free of as a full release to the corporation for all charge, and that the contractor was to re- claims of the appellee, is untenable. If it ceive a certain price-which he has forgotten had been, as supposed by counsel, a receipt ---for the complete work in wall. It is evident in full, the well-established rule of law isthat Mr. Grover was laboring under a mis- and has been so often asserted that author apprehension in regard to the bill, as his tes- ities in its support are unnecessary-that a timony is contradicted by his own acts, and receipt even purporting to be a receipt in full the records of the office. The following was is at all times liable to explanation and to in evidence:

impeachment. An examination of the receipt "Pueblo, Oct. 2, 1888. Denver, Texas & given shows that it was not a receipt and Ft. Worth Railway Co., Dr. to C. F. Mc- release of all demands, but, as stated in the Carty for 40 cubic yards stone at $1.50 per body of the receipt, "in full settlement of yard. Amt. $180. C. F. McCarty, Con- account as follows: 40 cubic yards of stone tractor.

@ $4.50 per yard.” That seven car loads "Pueblo, 10-4, '88. Mr. G. A. Armstrong, were shipped, amounting to 70 cubic yards, Supt. B. and B., Denver, Colo.-Dear Sir: is not disputed; and the receipt, upon its The above bill is for the stone used in con- face, by the bill attached, shows conclusively struction of masonry

of abutments that it was not in payment or settlement of Cherry Creek and turntable. The company seven car loads of stone, but of four loads. was to furnish this stone, and transporta- Under any circumstances, the receipt could

on

not, even if unexplained by all the testimony, be regarded as a receipt in full for seven car loads of stone, of ten cubic yards each.

We conclude that the court was warranted in finding that the stone was to be furnished by the appellant corporation; that Naughton was authorized by the division superintendent to purchase the stone from the appellee, and that he did so, at an agreed price of $4.50 a cubic yard; that seven car loads of stone were shipped under the contract, four of which were paid for, and the price of the remaining three unpaid; that the receipt offered in evidence was not a release of all claims, and that the balance, as found by the court, was due; and that the judgment should be affirmed.

ganized and incorporated, taking the name of the Brown & Campion Ditch Company, (now defendant in error.) It constructed a new head gate for the benefit of all parties a short distance above the head gate of the old Brown & Campion ditch, connected it with such ditch, entered upon it, materially enlarged it throughout its length, and extended it by a new ditch for some distance beyond the terminus of the former ditch. The rights of the owners of the original ditch and water-rights were not merged in those of the new company, but remained separate and distinct, entitled to all rights of priority and use of water acquired by their earlier appropriation and application. Plaintiffs in error, as grantees of Joseph Simineo, became the owners of his right in the old ditch, and also became shareholders in the new corporation, through purchase from Simineo, holding one-eleventh of the stock, amounting to 90 10-11 shares. In the year 1890, plaintiffs in error were assessed upon their stock for necessary repairs upon the ditch. controversy arose. Plaintiffs refused to pay a balance of about $14.50 alleged to have been due. The company, claiming to act under its by-laws, advertised the stock for sale, and at the time des nated caused the stock to be sold for just the amount at that time claimed to be due. It was bid in for the company, and a certificate of transfer made to the company. Plaintiffs acquiesced, and never afterwards asserted any rights as stockholders, or questioned the legality of the proceedings; but the company, according to the testimony of its officers, doubting the validity of its proceedings, disregarded and ignored them, and, without reinstating the plaintiffs as stockholders, elected to so regard them, and hold its own proceedings void. In pursuance of this policy, plaintiffs were charged pro rata for the cost of keeping the ditch in repair for three or four ensuing years. Plaintiffs failing to pay, this suit was brought to recover such assessments, including the $14.50 for which the stock was sold. The court found for the plaintiff, (defendant in error,) and such judgment is brought here for review.

Chas. F. Caswell, for plaintiffs in error. Bucklin, Staley & Safley, for defendant in

PATTERSON et al. v. BROWN & CAM

PION DITCH CO. (Court of Appeals of Colorado. Oct. 24, 1893.) CORPORATIOxs--AssessMENT OF STOCK-ESTOPPEL

IRRIGATION LIABILITY FOR MAINTAINING Ditch.

1. Where a corporation sold some of its stock for nonpayment of assessments, and bid the same in, in which the stockholder acquiesced, it cannot on its own motion treat the sale as invalid, and reinstate the stockholder, so as to render him liable for the assessment.

2. Where an irrigation company uses ditch already in operation, and extends a new ditch beyond the terminus of the old one, the owners of the old ditch are not liable for the cost of maintaining the new portion.

Error to Mesa county court.

Action by the Brown & Campion Ditch Company against James L. Patterson and others. From a judgment for plaintiff, defendants bring error. Reversed.

The other facts fully appear in the following statement by REED, J.:

Defendant in error, as plaintiff, brought suit before a justice of the peace to recover money alleged to be due upon the assessment of ditch stock for money expended in keeping in repair the ditch of plaintiff. The defendants below were sued as the owners of 90 10-11 shares of the capital stock of the company, and it claimed $75 due as the amount properly chargeable to the stock. The judgment was for the defendants, an appeal taken by the plaintiff to the county court, a trial had by the court, resulting in a judgment for the plaintiff. In the year 1883, Joseph Simineo, Dennis Sullivan, John J. McKay, and Daniel W. Collard took out from Kannah creek, for irrigating purposes, a ditch to cover their lands, and called it the "Brown & Campion Ditch," being three feet in width on the bottom, five feet at water surface, depth of water one foot. The length is not definitely given, but it appears to have been quite short. From the date of its construction until about the year 1887, it so remained, and the water was used by the parties named. On the 16th day of December, 1886, another company was or

v.34p.no.949

а

error.

REED, J., (after stating the facts.) Upon the trial it was properly held by the court, inter alia, that the plaintiff by its own acts was estopped to claim the defendants as stockholders. They not having questioned the validity of the ex parte proceedings of the company, but acquiescing in them, it could not assert the illegality of its own proceedings, and reinstate the parties as stockholders. This conclusion is eminently correct, and needs no support from authorities. But in the findings of the court upon which its judgment was based there was serious

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