The plaintiff answered the so-called "cross complaints" by denying all the allegations thereof. All the pleadings were verified. The cause was tried by a jury, whose verdict was in favor of the defendant for the sum of $1,123.61, upon which judgment was rendered against the plaintiff. The plaintiff appeals from the judgment and from an order denying its motion for a new trial.

1. Appellant contends that none of the affirmative answers of the defendant states facts sufficient to constitute either a counterclaim or cross complaint, and that the judgment should be reversed for this reason. While it is clear that the facts stated do not constitute a cross complaint, I think the first plea states the substance of a valid counterclaim to the first count of the complaint, which, if proved, would have supported the verdict, since it exceeds the amount of both counts of the complaint by $1,123.61, which is just equal to the verdict. The record shows no ground upon which the apparent inconsistencies of the defenses can be considered here. Buhne v. Corbett, 43 Cal. 264; Uridias v. Morrell, 25 Cal. 31.

bricks from defendant; but the defendant flatly contradicted this, and testified that Prescott alone ordered the bricks. Prescott testified positively that he neither individually nor as agent for the plaintiff ever ordered the bricks, or promised to pay for them; and there is no testimony or circumstance to connect the plaintiff with the transaction through any agency. The testimony of the defendant tended to prove only that he sold the bricks to Prescott, or to Prescott & Pierce. I think the order and judgment should be reversed, and a new trial granted.

We concur: BELCHER, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial granted.

(3 Colo. A. 437) CUSHMAN et al. v. HIGHLAND DITCH CO.

(Court of Appeals of Colorado. May 8, 1893.) APPEAL-CONFlicting Evidence—INJUNCTION.

An action, by the appropriators of the waters of a creek, to restrain a ditch company from polluting it by turning a large quantity of alkali water into it from a reservoir constructed by the company, was brought before any such water had ever been actually turned into the creek. Held, that a judgment denying the injunction on the ground of failure of proof as to permanent injury liable to result to plaintiffs from the threatened action of the company would not be disturbed on appeal, where the evidence is conflicting, since plaintiffs may bring an action for damages, or file another bill to restrain the continuation of the pollution, on proof of the permanent character of the injuries from the actual result of the turning of the alkali water into the creek.

Appeal from district court, Boulder county. Action by A. W. Cushman and others against the Highland Ditch Company to restrain defendant from polluting the waters of a creek of which plaintiffs were the appropriators. From a judgment denying the injunction, plaintiffs appeal. Affirmed.

It is further contended that the evidence does not justify the verdict, in that it does not tend to prove that defendant ever sold or delivered any bricks to the plaintiff through the agency of Prescott & Pierce or otherwise; and it seems clear that this point should be sustained. It appears without controversy that all the bricks mentioned in the answers were to be used in the erection of a building known as the "Chamber of Commerce Building," owned by a stock company, in which the plaintiff was not interested; that one Joe Smith was the contractor for the erection of the building; that the bricks were delivered by defendant at the site of that building, and were used by the contractor in the erection of the building; that the company owning the building (the Chamber of Commerce Association) failed before the building was completed, having mortgaged the building for more than its value; that the work on the building was abandoned by the contractor; and that the building has not been completed. There is also undisputed testimony that the filing of liens by the contractor and material men would have been useless, because of the prior mortgage for more than the value of the property. It appears that Prescott & Pierce were copartners, principally engaged in dealing in grain, and that they were also managing agents for the plaintiff corporation, which had furnished lumber and lime used in the construction of the building of the value of $1,500 to $1,600, for which it had not been paid. It also appears that the 171,-propriated by application to their lands. The 000 bricks mentioned in the different answers were the same that were used in the Chamber of Commerce Building, and that defendant delivered no other bricks. The contractor, Joe Smith, testified that he ordered the

Minor & Stockton and J. H. Randall, for appellants. B. L. Carr and F. P. Secor, for appellee.

BISSELL, P. J. The parties to this suit were, on one side, the owners and occupants of lands along the line of St. Vrain creek, and, on the other, a corporation called the Highland Ditch Company, which was a distributor of water to its stockholders. The plaintiffs and appellants were old settlers along the line of the stream, and had very ancient and early rights to the water which they had diverted by their ditches, and ap

ditch company seems to have been organized by later settlers, further down the stream, who were not always able, with due regard to the early appropriators' rights, to obtain what was necessary for the irrigation

affirmed. There is no question that riparian owners and these prior appropriators of water are entitled to have the St. Vrain creek flow unimpaired in quantity and unpolluted in any permanent and unreasonable way. The law which entitles parties to preserve the purity of the streams whose waters are theirs by purchase or by appropriation is so thoroughly well settled that it can only be assumed the court found, upon the evidence, there was no proof which would establish a probable permanent injury to the complainants. It is quite true that the record furnishes a very strong basis for the opinion that the result may be otherwise. If the present judgment was conclusive of the question, and resulted in the permanent settlement of it against the rights of the complainants, this court might be disposed to review the case, and send it back for another hearing. We are always reluctant to disturb the findings of a lower court as to questions of fact, and do not concede this to be a case where necessity requires a departure from the ordinary rule. Before this time the drain ditch has been constructed, the reservoir has undoubtedly been flushed, and it is a matter probably susceptible of proof, to the satisfaction of a jury and of the court, as to what the actual result of the pro

of their lands. To remedy this difficulty, appellate procedure, the judgment must be in a measure, the corporation constructed a reservoir at a point above where the plaintiffs' ditches take their water from the stream, and in a natural basin, which in the early times was called the "McIntosh Lake." This was an ancient slough known to the residents of that section in the very early 60's as an alkali slough. According to the description given of it by the witnesses, in the rainy season it contained considerable water, but towards the latter part of the summer it was nearly dry, and its surface became, apparently, one white mass of alkali. In the execution of their plans, the Highland Ditch Company built a dam across the lower part of the lake, and thereby flooded two or three hundred acres of land, and were able to put into the lake water to a depth of 10 or 15 feet. The opportunity to get this water was furnished by a contract which they had with another ditch company, and was apparently exercised at that season of the year when waters were high, and unused by other appropriators. After the dam was built, the company started to construct a drain ditch from the reservoir down to St. Vrain creek for the purpose of drawing off all the water in the lake, or substantially all of it, after it should have been filed, to flush it, and purify it by the removal of the alkalies, which would necessarily be ab-ceeding is. The parties undoubtedly have the sorbed, and held in solution, by the body of water with which the lake was filled. The plaintiffs filed their bill on the theory that the turning of this vast body of alkali water into the St. Vrain creek, which was the declared purpose of the ditch company, would so pollute the waters of the St. Vrain as to render them unfit for irrigation or domestic purposes. It will be observed that the water had never been turned into the creek, and that the ditch had not been constructed at the time the bill was filed. To sustain their action the plaintiffs showed, by chemical and professional testimony, as well as by the testimony of farmers, that the wa TOOTLE et al. v. FIRST NAT. BANK OF PORT ANGELES. ters of the lake were impure, and held (ac

right to bring what was formerly an action on the case to recover damages, or a right to file a bill, and restrain the company from using the reservoir, if they are able to satisfy the court that it is of a permanently injurious and wrongful character. Since this is true the judgment dismissing the bill will be affirmed, with costs, but without prejudice to the right of appellants to bring such action at law, or file such bill in equity, as they may be advised.

BANKS-CONTRACTS BY OFFICERS ULTRA VIRES.

Where a bank receives property from a debtor worth $7,000 to pay its claim of $2,000, under an agreement by its officers out of the surplus to pay other creditors of the debtor, it cannot set up the defense of ultra vires in an action by a creditor to recover his share of the surplus. Hoyt, J., dissenting, on the ground that there was no evidence of such contract.

cording to some of the witnesses) nearly 200 (Supreme Court of Washington. April 7, 1893.) grains of solid alkaline matter to the gallon, when 35 is the limit consistent with safety. They also offered proof concerning the digging of the ditch through the lower end of the slough, and the consequent appearance of alkali wherever the land was disturbed, and considerable proof showing that the whole country was thoroughly impregnated with these foreign and deleterious substances. On the other hand, there was evidence which tended to show that the flushing of the lake would purify the water, and do no permanent harm to other appropriators, and that the storage would be a very great benefit to the shareholders of the ditch, and bring a large quantity of land under cultivation. On the hearing the interlocutory injunction which had been granted was dissolved, and a decree entered dismissing the bill. Under the well-established rule governing

Appeal from superior court, Clallam county; James G. McClinton, Judge.

Action by Kate Tootle and others, partners under the firm name of Tootle, Hosea & Co., against the First National Bank of Port Angeles. The court nonsuited plaintiffs, and they appeal. Reversed.

The facts are as follows: The B. F. Schwartz Company, a corporation, was the proprietor of a mercantile establishment in the city of Port Angeles, Wash., separately

ant canceled and returned said notes, and sold said property, but did not pay the debts, and now denies that it ever did owe the Schwartz Company. By reason of these acts the Schwartz Company was rendered insolvent. The claim of plaintiffs was not paid, and on September 2, 1891, in the superior court of Clallam county, plaintiffs recovered judgment against the Schwartz Company for the sum of $759.38, and for costs taxed at $28.95; and thereafter they issued execution, which, being unsatisfied, became the basis of proceedings supplemental under the Code, in behalf of plaintiffs and against defendant as debtor of the Schwartz Company, which resulted in the court's directing plaintiffs to sue defendant to recover its indebtedness to the Schwartz Company.

Ballinger & Ballinger, for appellants.

managed and conducted by it under the name and style of the Port Angeles Mercantile Company. On April 20, 1891, said mercantile company was indebted in a sum exceeding $7,000, included in which sum was its indebtedness to plaintiffs amounting to $759.38. Its stock of goods and other property was worth some $8,000. A portion of the indebtedness had been guarantied by the cashier of defendant, which was then, and is now, a national bank, on which guaranties the bank was being importuned. The affairs of the mercantile company were not prospering, and money was needed to pay its most pressing obligations in order to extricate the business, and put it in position to pay its debts. On that date the said Schwartz Company applied to defendant for a loan of $2,500 for that purpose. The defendant loaned the money to the Schwartz Company, and took therefor the two notes of one B. F. Schwartz, the president of the B. F. Schwartz Company; and to secure said DUNBAR, C. J. We think there can be notes said company, by its president and one no question that the bill of sale of the propI. Salhinger, as its secretary, conveyed the erty of the mercantile company was intendproperty of said mercantile company, by ed as a mortgage to secure the payment of bill of sale, to said Schwartz, and said the notes. This is apparent, both from the Schwartz, as a part of the same transaction, testimony and from the answer, and the conveyed the same, by bill of sale, to deonly serious question in the case to consider fendant. It is admitted that the last bill of is whether the bank is bound by the action sale was given to secure said notes, but of its officers in the transaction upon which plaintiffs claim that it was intended simply his suit is based. This fact seems certain as a mortgage, while defendant claims it .rom the testimony, viz. that the bank has was intended as a conditional sale, to bereceived property worth about $7,000, when come absolute, practically, at its option. its claim was only $2,000. It is not necesThe money loaned was left with the bank, sary to decide whether or not the contract and was paid out by it to certain creditors was ultra vires, for it was not immoral, it of the mercantile company, under Schwartz's was fully performed by the other party. direction. After these transfers Schwartz and the bank received and retained the benremained in possession and control of the efits, and in such a case the plea of ultra property until about June 9, 1891, buying vires is unavailing. 2 Morse, Banks, (3d Ed.) and selling goods, and applying the proceeds $ 740. "The doctrine of ultra vires as a de of the property to the payment of expenses fense has died so hard that it is well to reand for goods, and disbursing the same by peat the proposition which seems to be fully the check of the mercantile company, "per established by the more recent decisions.-Schwartz," as before the sale. About that that where a contract has in good faith date, and before the notes matured, the been fully performed, either by the corporabank notified him that he must pay the tion or the other party, the one who thus notes, and it thereupon applied on said notes has received the benefit will not be permitted the proceeds of the sales of said goods not to resist its enforcement by the plea of mere disbursed, in the sum of about $400. Certain want of power. Time and again corpora creditors of the mercantile company threat- tions have been held estopped to plead ultra ened to attach the property, and the bank vires to an action on the contract performed proposed to all the creditors that it would by the other parties, where the corporation take the property, and pay 50 cents on the has received the benefits, although clearly dollar of all the claims against the company. beyond its powers." 2 Beach, Priv. Corp. § Schwartz then turned over to the bank all 425. To the same effect is 2 Mor. Priv. Corp. of said property, on the promise of the bank, (2d Ed.) § 688, and Green's Brice, Ultra through one Gray, its president, in considera- Vires, p. 729, note a. The doctrine of ultra tion therefor, to pay and settle all the debts vires, when invoked for or against a corpora of said mercantile company, amounting to tion, should not be allowed to prevail where about $7,000, including the claim of appel- it would defeat the ends of justice or work lants, then due, of which claim the bank a legal wrong. Railroad Co. v. McCarthy, had notice; and the bank further promised 96 U. S. 258. This rule is so well estabto cancel and return said notes to Schwartz, lished that it is the work of supererogation on which about $2,000 was still to become to quote authorities to sustain it. While it due. The property SO turned over was is not shown that the contract to pay this inworth about $7,000 or $7,500. The defend- debtedness was entered into by resolution of