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terially short of the requirements. Accord There is no doubt that the abstra iesa ing to the testimony of the plaintiff Robert proposition embraced in the instructen son, the foundation walls, at their rear, lacked ferred to is correct. If the defendant bet about three and one-half inches of the requi while the work was progressing, that it me site height, and were therefore out of level not being done in accordance with the in to that extent. The deficiencies shown in ment, but nevertheless suffered it to prove the evidence for defendant are much more to completion without objection, she LD serious in their character and degree, but now be heard to say that the terms of for our purpose specific mention of what contract were not observed, and that plaintiffs admit is all that is necessary. Up- plaintiffs shall therefore have nothing on the foundation walls, in this condition, a conduct on her part would amount bi three-story brick superstructure was erected, waiver of the defects of which she ben at a cost of about $20,000; the defendant and the plaintiffs would be entitled to be claiming that until after this erection she ment for the value of the work en had no knowledge of the defects in the con done, and as it was done, estimated crete and foundation walls. Plaintiffs under reference to the contract price. It does took to prove that she knew of them while

appear that she personally knew anything the work was being done.

about the work while it was being done: bc This action is brought upon the contract.

there is evidence tending to show that he A literal compliance with its terms is al husband, Mr. Grimm, excavated the trend leged, and upon such compliance the right for the concrete, was constantly presa to recover is based. The allegations are while the concrete was being laid and not sustained by the proofs. An averment foundation walls built, overseeing the Ta of performance is not supported by proof of and had actual knowledge at the time to waiver of performance, even conceding that the very defects complained of. Couns! 14 proof of such .waiver was made. That in plaintiffs asked the defendant, mbo Tis 3 case of want of performance a waiver of the stand as their witness, this questie such performance may cut a very important "Did he [Mr. Grimm] erer act for you? figure in determining the rights of the par

any way concerning this contract, or ties is not disputed; but the facts of non part of this work?” To this question de performance and of waiver must be plead- fendant's counsel objected, because they ed, otherwise the proof is not admissible. was no allegation of agency in the complaiz. Had this rule been insisted upon at the trial, The objection was sustained. Plainting it is clear that the case of plaintiffs failed then asked leave to amend by inserting a upon their own testimony. Purdue v. Noff- allegation of agency, which leave his it singer, 15 Ind. 386; Elliott v. Caldwell, 43 fused. If such allegation were DeCAT, Minn, 357, 45 N. W. 845; Britton v. Turner, the amendment should have been permitiei 6 N. H. 481; Pom. Rem, & Rem. Rights, 8 But we do not think it was necessary. Tl554. Ordinarily, therefore, we should con question was evidently preliminary to do sider the plaintiffs' case disposed of, and be ers, which would probably have brought stow upon it no further remark, investigat into light the exact relations sustained by ing only the correctness of the judgment for Mr. Grimm to the defendant in connect. damages against them. But the objection with the work. If he was her agent for that the proofs varied from the allegations the purpose of overseeing the work and o was not taken at the trial; nor, for that serving that it was properly done, then ang matter, is it taken here.

The case knowledge which he acquired while in the tried upon the theory that a knowledge by performance of the duties intrusted to him. defendant of the defective construction of as to the manner in which the work is the foundation and walls, at the time they done, was her knowledge. The acts of a were constructed, without objection to them agent, done within the scope of his author on account of the defects, might preclude ity, are as essentially the acts of the prit her from insisting upon the failure of plain- cipal as if they had been done by the priztiffs in the performance of their contract; cipal himself; so of an agent's knowledge of and instructions were given to the jury, matters affecting his principal's business, ac without objection from defendant, which quired in the transaction of that business contemplated a verdict in plaintiffs' favor, An allegation, therefore, of acts done a notwithstanding their failure to comply with knowledge obtained by the principal is fully the terms of the contract, if the jury should satisfied by proof of such acts or such knop! believe from the evidence that the work was edge on the part of the agent, and in a cottaccepted by the defendant with knowledge plaint it is unnecessary to set forth the of such failure. We are bound to treat the agency. The only objection to the question case as the parties themselves have done, was that the agency was not pleaded. As and to consider it as if the statements in to any matter connected with the supposed the complaint would warrant a recovery up waiver of defects, this is true; and neither on proof of waiver of performance. The ob was anything pleaded which would author jection of variance must be taken at the ize evidence of waiver by the defendant her. trial, otherwise it cannot be considered on self, or which would authorize a recorers appeal. Pom. Rem. & Rem. Rights, $ 555. against her upon any other terms than full

was

npliance with the contract; but as, by | pellant has been prejudiced by the ruling. , tacit consent of the parties and of the He might have moved for a nonsuit at the irt, the rules in relation to allegation and close of appellee's case, and before he ofwof were disregarded at the trial, the fered any evidence himself, on the ground irt should have permitted the question to that no case had been made against him.

answered. It might not have resulted in He did not do this, but proceeded to exam. ything beneficial to the plaintiffs, but, if ine witnesses and introduce testimony, pre

had, then the evidence of what Mr. Grimm cisely as if the note was legally before the d and knew was pertinent, and the ques court. He does not complain that be was on of waiver could have been intelligently deprived of any defense by reason of the irissed upon by the Jury. Unless the de regular action of the court, and the record ndant accepted the work in such manner shows that he was not. The want of the ; to shut her off from the defense of want note in evidence should have been taken ad. ! compliance with the contract, we are un vantage of at the proper time, and inasmuch ble to see how, under the facts of this as it was not, but the note, on the contrary, ise, there can be any recovery by the treated as if it was in evidence, the irregu. laintiffs; but, as this question is not direct | larity complained of is not such as would, ✓ before us, we shall not bind ourselves by for tbe purposes of justice between the parhe expression of a positive opinion concert tics, demand a reversal of the jud ent, and ng it. Because of the error in sustaining it is therefore affirmed. he objection of which we have spoken, the udgment must be reversed.

BURCHINELL, Sheriff, v. WEINBERGER

et al.

(Court of Appeals of Colorado. Nov. 13, 1893.) BROWN V. HILLEN.

SALE-CHANGE OF POSSESSION. (Court of Appeals of Colorado. Nov. 13, 1893.)

A change in possession of barrels of TRIAL-ADMITTING NOTE IN EVIDENCE IN RE whisky, as against attaching creditors of the

seller, is not accomplished by rolling them Where defendant in an action on a note apart from the rest of the stock in the seller's fails to take advantage of plaintiff's failure to store, and marking them with the buyer's brand, put the note in evidence, by moving for a non -the latter having then no room for them in his suit at the close of plaintiff's case, but intro store, but agreeing to remove them in a few duces evidence in support of a set-off claimed by days, -and the good faith of the parties is imhim, it is not reversible error to admit the note material. in evidence in rebuttal.

Error to Arapahoe county court. Appeal from Arapahoe county court.

Replevin by Solomon Weinberger and Leon Action by Robert G. Hillen against George Alexander, trading as Weinberger & AlexX. Brown on a promissory note, commented ander, against William K. Burchinell, sheriff in justice's court, and taken by defendant, of Arapahoe county. Judgment for plainon appeal, to the county court. From a judg- tiffs. Defendant brings error. Reversed. ment for plaintiff, defendant appeals. Af

John L. Jerome and Thomas H. Hood, for firmed.

plaintiff in error. Alfred Muller, for defend. Sullivan & May, for appellant.

ants in error.

BUTTAL.

THOMSON, J. This was a suit original. BISSELL, P. J. This suit springs from ly commenced by the appellee, Hillen, against the assertion of conflicting claims by a venthe appellant, Brown, before a justice of the dee and an attaching creditor of Boehm & peace, upon a promissory note for $200 exe Co. March 9, 1892, Boehm & Co. were cuted by appellant to one Schooley. After wholesale liquor dealers in Denver, and the sundry assignments and transfers, it came transaction out of which this controversy into the hands of appellee. The justice ren sprung occurred on that date. Weinberger & dered judgment against appellant, from Alexander were retailers in the city, and went which he appealed to the county court. to the wholesale house to buy goods. They At tbe trial in that court, witnesses upon asked to purchase one barrel of whisky. For both sides testified as to the history of the some unexplained reason, and one not easily note, from its execution until its final trans inferable from the record, Boehm & Co. defer to appellee. Appellant testified as to a clined to make the sale, and refused to sell set-off to which he claimed to be entitled as less than five barrels in a lot. The puragainst Schooley. The note was not formal. chasers thereupon agreed to take the five ly given in evidence until rebuttal, when it barrels. One barrel was ordered sent to was offered and admitted over the objection their store, and the remaining four were left of appellant. The court rendered judgment with Boehm & Co. The only assigned rea in appellee's favor for $141. The appellant son for leaving these four barrels was the relies for a reversal of this judgment upon lack of room in Weinberger & Alexander's the ruling of the court permitting the intro place. As the transaction is stated by the duction of tbe note in rebuttal. This was ir. witnesses, Boehm & Co. were directed to regular, but we do not see wherein the ap send one barrel on the day of the sale to

the vendees' place of business, and the ven Justice Beck, the statute "admits of a dees agreed to call on the ensuing Monday cuse for leaving personal chatteis, acho for the balance. The goods were not paid of manual delivery and removal, in tot ein for at the time, though Weinberger & Alex parent possession of the vendor." I ander gave their notes for the purchase price statement has likewise been amplif-1 se of the entire lot. When the sale was con the supreme court has declared that, in orde cluded, Boehm & Co. rolled the four barrels to accomplish this change of se away from the remaining whisky with which which is essential to a transfer of the sea they had been before intermingled, marked the property itself must be removed to them with chalk, and stamped thereon the the custody and control of the rend: words “Log Cabin,” which was the name wherever removal be possible, and do under which Weinberger & Alexander were standing any expense or hardship this accustomed to sell their goods. The trans loval may entail. These expositions : action was noted in the internal revenue statute render our duty plain, and the es book kept by the sellers and purchasers, oration of the law totally unnecessary. " and a copy of the gauger's receipt was de are only required to determine whetdar the livered to the vendees. This is substantially evidence produced established the change of a statement of the transaction, and about it possession which these authorities hold be the witnesses did not differ. The case al absolutely essential to a valid sale. If most amounts to one tried on an agreed case rested upon conflicting testimony, 2017 statement of facts. Consequently, the ques the verdict of the jury had settled the qua tion presented to the court is a naked one tion in favor of the plaintiff, under program of law, and its resolution must settle the instructions, the case would not bare bed rights of the parties. Before the following so simple. Wherever, as here, there is » Monday, which was the 14th of the month, dispute concerning the facts, and they do a writ of attachment was issued at the suit not establish the title of the vendee & Te. of some creditors of Boehm & Co., and levied dict in his favor should not be upheld. We on the goods in their place of business. The are of the opinion that under the citofour barrels spoken of were taken under the stances of this case the sale as clears writ. Thereupon, Weinberger & Alexander void, under the statute. The thing sold to brought replevin against the sheriff to re sisted of chattels capable of easy and is cover this whisky, and the sheriff justified mediate delivery. The excuse for leasin: under his writ.

the property in the possession of Bobo á It has already become very manifest that Co. is without the merit of probability, ar? the sole matter to be determined is whether though it might be absolutely true, oad the sale is within the statute of frauds, and not be a justification sufficient to take the therefore void, or whether the vendees took case out of the statute. To acquire a giud good title to the property by reason of what title, as against the attaching creditors occurred when the sale was made. The Boehm & Co., Weinberger & Alexander Teie law on this subject has been so frequently bound to take the whisky which they bought. declared in this state that there is no room and remove it from the store of the vendor left for construction or analysis, and the The instructions which the court gave to the only duty that remains is to state and apply jury were clearly erroneous, since the raliwell-settled principles. Cook v. Mann, 6 ity of the sale was made to turn largely a Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 the good faith of the parties. As the s? Pac. 966; Bassinger v. Spangler, 9 Colo. 175, preme court has frequently decided, the 10 Pac. 809; Atchison v. Graham, 14 Colo. question of good faith does not enter into the 217, 23 Pac. 876. These cases clearly de transaction. The question is always, naked cide that under our statute, wherever there ly, one of a change of possession, such as is a contest between a vendee of personal shall afford visible notice to the world of property and an attaching creditor, the ven change of ownership. We do not deem it dee must be able to establish that there was necessary to review these instructions in an immediate transfer of the possession of detail, for upon a retrial, should it occur, the the property which he bought, or that there jury are not likely to be orally instructel were some circumstances connected with the as to the law, and the court will probably transaction which rendered a literal com not fall into a similar error. pliance with the statute impossible. The Some question was made on the argument possession must, of necessity, be always sub concerning the sufficiency of the allegations ject to the variations naturally and neces and the proof of the rights of the plaintif sarily resulting from the character of the in the attachment suit. It is possible that property which is the subject of the sale. au objection of this sort would be a vailable, It must, so far as is consistent with the where the vendee took issue as to the essitus and nature of the thing sold, be open istence of the debt for the collection of and visible, and so transferred as to apprise which the suit was instituted. But it seems the world of the change in ownership. The to us evident, from the record and prool, directions of the statute are plain and specif. that Boehm & Co. were indebted to the ic, and they leave no possible room for con First National Bank, which brought the at struction. As it was put by the late Chief tachment suit. In any event, if this is an

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important and serious matter, the question 9, 1892, Finch sold note No. 2 to Alexander of the rights of the parties can be amply pro Young, and indorsed it without recourse on tected on the subsequent trial which must him, but at the same time he made and de be bad under this decision. We would not livered a written assignment to so much of feel inclined to affirm a judgment which said mortgage as secured the payment of was manifestly wrong on the proof, even note No. 2, and also delivered to Young the though we might conclude that the suffi mortgage itself. An action was brought by ciency of the proof upon a question of this the bank, to which Young was made a party. sort could legitimately be made a proper Young afterwards brought an action to foresubject of debate. The case is not so de close, and these actions were consolidated by fective in this particular as to compel us to the court, and upon which trial the court attirm the present judgment. Since the title decided that the note of the bank was enof the plaintiffs in replevin was not estab titled to a priority of the proceeds arising lished by sufficient competent testimony, from the sale of the mortgaged premises. and upon the case made the sale was void There are two questions of law involved under the statute, the judgment will be re in this case: First, the question of authority versed, and the case sent back for a new on the part of the national bank to take a trial.

mortgage on real estate to secure payment of a loan where a debt had not been previously contracted; second, the question of

priority where the holder of two promissory FIRST NAT. BANK OF ABERDEEN y.

notes, coming due at different times, secured ANDREWS et al.

by mortgage, parts with their ownership to YOUNG 7. SAME.

different persons at different times, and the (Supreme Court of Washington. Nov. 15, 1893.)

sum realized from the sale of the mortgaged MORTGAGE-ASSIGNMENT OF NOTES --PRIORITIES

premises proves insufficient to pay the notes NATIONAL BANKS-COURTS.

in full. The first question involves the de1. Where notes payable at different times, termination of the scope and extent of the and secured by a mortgage, are assigned to dif prohibition imposed upon national banks by ferent persons, there is no priority of right un

sections 5136, 5137, of the Revised Statutes der the mortgage between the assignees, in the absence of express stipulation, but each is en

of the United States, which provide, in subtitled to share pro rata in the proceeds of the stance, that a national bank may loan money mortgaged property. Miller v. Bank, 31 Pac. on personal security, and that it may pur712, 5 Wash. 200, explained. 2. A national bank has power to take an

chase, hold, and convey real estate for the assignment of a mortgage on land to secure a

following purposes, and no other: (1) Such loan made at the time of the assignment.

as may be necessary for its immediate accom3. As the supreme court of the United

modation in the transaction of its business; States has decided that it has authority to reexamine the judgment of a state court as to the

(2) such as shall be mortgaged to it in good power of national banks under the act of con faith by way of security for debts previously gress, a state court should follow its decisions contracted; (3) such as shall be conveyed to on the question.

it for satisfaction of debts previously conAppeal from superior court, Chehalis coun tracted in the course of its dealings; (4) such ty; Mason Irwin, Judge.

as it shall purchase at sales under judgConsolidated actions by the First National ments, decrees, or mortgages held by the asBank of Aberdeen against Julius Andrews sociation, or shall purchase to sectire debts and others, and by Alexander Young against to it. Upon the construction of this statute the said Andrews and said bank. From a

the courts of the different states are divided, judgment in favor of the bank, Young ap but the supreme court of the United States peals. Reversed.

has uniformly held that a distinction can N. W. Bush, for appellant. McKinlay,

be made between borrowing money on real Linn & Bridges, for respondents.

estate and accepting an assignment of a

mortgage by the mortgagee as security for DUNBAR, C. J. On December 31, 1891, money borrowed by the said mortgagee. Andrews made his two promissory notes, This doctrine was first announced in Bank payable to E. O. Finch, numbered 1 and 2. V. Matthews, 98 U. S. 621. In that case A. No. 1 was payable six months from date and executed a promissory note to B., and seNo. 2 was payable nine months from date. cured the payment thereof by a deed of trust At the time of the execution of the notes, of lands, which was in fact a mortgage, with Andrews made and delivered to Finch a a power of sale annexed. The bank, on semortgage on real estate, to secure the pay curity of the note and deed, loaned money to ment of both of said notes. On said day B., who thereupon assigned them to the Finch sold note No. 1 to the First National bank. It was held that the bank was enBank of Aberdeen, and guarantied the pay titled to enforce the collection of the note ment thereof. No assignment of any part of by sale of the lands. This decision was afterthe mortgage was made to the bank, nor wards indorsed, and the doctrine reaffirmed, was the mortgage delivered to it. The mort in Bank v. Whitney, 103 U. S. 99; Reynolds gage was recorded by Finch on March 28, v. Bank, 112 U. S. 405, 5 Sup. Ct. 213; and in 1892, in the proper office of record. On April Fortier v. Bank, 112 U. S. 439, 5 Sup. Ct.

V.34p.no.11-58

234. Whether, if the statute were before us manded, with instructions to ascertain te for primary construction, we would conclude amounts due on the respective notes, si that the distinction made by the supreme order a pro rata application thereon of the court of the United States was logical, there proceeds of the mortgaged premises. might be some question; but, as it is a construction of the United States statute, ANDERS, HOYT, SCOTT, and STILES and the United States supreme court bas de- | JJ., concur. cided in Swope v. Liffingwell, 105 U. S. 3, that it has authority to re-examine the judgment of a state court where this question is involved, we feel bound to follow the de STATE ex rel. HINCHEY V. ALLIS cisions of that tribunal. On the question of (Supreme Court of Washington. Nos. 17, 18€ priority of the assignees an investigation of MANDAMUS TO Ex-JUDGE_SETTLEMENT OF Pace the authorities in this opinion would be A judge of a superior court, shoe z profitless, for the rules announced by the expired on the second Monday of January, 180 court are absolutely at variance, and can

cannot be thereafter compelled by mandans

settle and certify a statement of facts; 4 not be reconciled. There are, however, two Jan. 21, 1893, only authorizing, and not red general rules promulgated by the courts. ing, such action by an ex-judge. The one established in a large number of

Mandamus on the relation of Thomas o states is that, where the notes are made pay chey against Frank Allyn, ex-superior jodra able at different dates, and are assigned by Writ denied. the mortgagee, either with or without an accompanying assignment of the mortgage, the

Stephen O'Brien, for petitioner. holder of the first pote coming due has a prior right to the proceeds of the mortgaged

STILES, J. A judge of a superior corra premises. In other words, that the right of

whose term of office expired on the second priority among the respective assignees was

Monday of January, 1893, cannot be required tested by the maturity of the respective

by mandamus to settle and certify a star notes. While a vast number of cases of

ment of facts on appeal, after the expiratia

of his term. equally respectable authority hold that un

The act of January 21, INC der the circumstances mentioned above there

does not purport to do more than to auth. is no preference given to the first note ma

ize the ex-judges to settle and certify. turing, and that, in the absence of expressed

does not, and could not require them to de stipulation, there is no priority in the case

anything. The application for a writ in this at all, and that all the assignees are en

case is therefore denied. titled to share pro rata in the proceeds of

DUNBAR, C. J., and HOYT, J., concur. the mortgaged premises. Although the former rule is favored by such eminent author SCOTT, J. I concur in the result ity as Mr. Pomeroy in his Equity Jurisprudence, (section 1201,) the latter rule ap ANDERS, J., (concurring.) For the ret peals to our judgment as being more equi sons stated by me in Faulconer F. Warnei. table. The mortgage, in the first place, was 2 Wash. St. 525, 27 Pac. 274, I am of the executed for the equal benefit of all the opinion that prior to the passage of the act notes. The security was intended as much of January 21, 1893, it was the duty of 9 for the ltst note coming due as for the first judge whose office had expired to settie

There seems to be no real reason why | statements of facts in cases tried before the relative positions of the notes and mort him. But, as I feel bound by the majority gage should be changed because the owner opinion in that case, I concur in the dispostship of the notes has changed. The value of tion of this application, on the ground set the notes frequently depends upon the se forth in the foregoing opinion of Judge curity. We think the more equitable and STILES. consistent rule is to leave their values undisturbed by their assignment. Miller v. Bank, decided by this court, and reported in 5 Wash. 200, 31 Pac. 712, is cited by the re

LEWIS v. CITY OF PORT ANGELES spondent in favor of his contention; but an (Supreme Court of Washington. Oct. 14, 1813.) examination of this case shows that the MUNICIPAL BONDS-ORDINANCE ORDERINO ELEO court did not attempt to announce any gen

TION-RECITALS. eral rule on the question involved in this

A recital in an ordinance submitting , case. That decision in fact goes further

proposition to bond the city for the establish

ment of an electric lighting plant, that said against the position of respondent in this ordinance was passed in pursuance of a certain case than we find it necessary to go, as it act, is mere surplusage; and where the act se

cited is no longer in force, but is substantially was there decided that the priority was in

re-enacted by the repealing act under which the favor of the note last maturing. However, ordinance must in fact have been adopted, there no rule was established, as it was decided is no ground for an injunction on the bond is squarely upon the particular circumstances of the case. With this view of the law the Appeal from superior court, Clallam coun judgment will be reversed, and the cause re ty; R. A. Ballinger, Judge.

one.

sue.

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