ment. D. B. Keeler, Assistant General Freight Agent. Denver, Colo., Dec. 31, 1889. Messrs. Rogers, Shafroth & Whitford, Attorneys, City-Dear Sir: Referring to your esteemed favor of the 26th inst., relative to the matter of the claim of R. Hepner against this company for bale of goods shipped from Butte, Mont., beg to advise you that we are investigating, and endeavoring to locate the missing freight, and will advise you the result as soon as we can get our papers back, which are now out on the roud. Trusting this will be satisfactory, I remain, yours, truly, H. A. Johnson. M. M.-S-Claim. Both of the letters were objected to for immateriality and irrelevancy. The missing goods were never received by the plaintiff. The defendant introduced no evidence, except on the question of the value of the property.

"

"

It is urged that there was no evidence that the goods in controversy ever came into the possession of the defendant. The Montana terminus of the Union Pacific Company is at Silver Bow. The distance between Butte and Silver Bow is seven miles, spanned by a railroad called the Montana Union Railway. Whether this seven-mile railroad is operated by the defendant, or not, does not appear; but we find that the expense bill furnished by the defendant is headed with the words, "For Freight from Butte," and embraces, not only the four boxes of dry goods which were delivered to the plaintiff, but the roll of bedding and bundle of clothing which were not delivered. It refer to waybill No. 201, dated August 27th. What this waybill was, is not disclosed, but it was probably the defendant's own waybill, made on receipt of the goods from the Montana Central Railway Company. It certainly was not the waybill given by the latter company when the goods were originally shipped at Helena, for that bill bears date August 24th. On the face of the expense bill is stamped: “Correct. A. S. Van Kuran, Freight Auditor.' This memorandum was made while the expense bill was in possession of the company, for the purpose of aiding it in tracing the property. The fair inference from the words at the head of the bill of expense, and the memorandum "Correct," would be that the goods had been in fact received by the defendant at Butte, Mont.; and that inference is strengthened by the declarations of the defendant's agents and officers while engaged in a search for the property. The two letters read in evidence are objected to as immaterial and irrelevant, but we are unable to agree with the learned counsel in that objection. The statements and representations of an "gent, made in reference to an act which he is authorized to perform, and while engaged in its performauce, are binding upon his principal. They are part of the res restæ. These letters were written, and the memoranda on the expense bill were made. by the company's agents, while they were endeavoring to find this property, and they have reference, exclusively, to the act in which they were then engaged. The statements which they contain are

therefore the statements of the defendant itself, and the defendant is bound by all the inferences which legitimately result from the statements. The stamp on the face of the bill is that it is "correct," and, if it is correct, then the defendant received the goods. The first letter contains the following words: "That they have been unable to locate the roll of bedding and bundle of clothing shipped by you from Butte, August 27th." Here is at least an implied admission that the defendant received the goods at Butte. But, even if nothing affirmative upon the subject could be found in either letter, yet both are apparently written upon the bypothesis that the defendant had received the goods, and lost them; and it is certainly a matter of some significance that until the filing of the answer there is not, either in the letters or elsewhere, a denial that the goods had been delivered to the company. As to whether or not they had been so delivered, the defendant possessed the means of ascertainment. It would have been a matter of no difficulty for it to discover whether the goods came into its possession, and, when it was notified of their loss, it is presumable that the very first step it took was to see whether it ever had them. If it had found that it had never received the goods, that would have ended the investigation. It is fair to asSUIGE that the company pursued this course, and the very fact that none of its agents or officers engaged in the pursuit of the property ever claimed that the company had not received it is evidence, of greater or less weight, that it actually had received it. There are circumstances under which a failure to deny is equivalent to a positive admission. Again, a portion of the shipment was received by the plaintiff. It had been received by the defendant from the Montana Central Railway Company, and was brought over its line to Denver. All of the goods had been shipped together, and embraced in the same waybill. Part came through, and part did not. In such case the presumption is that the entire property received by the first line was delivered by it to its connecting line, and that the loss occurred while the property was in the custody of the last line. The difficulty, if not impossibility, of the ascertainment by the plaintiff of the actual facts, and the ease with which, by means of the knowledge in its possession, the defendant could ascertain them, render this presumption necessary, to avoid a denial of justice. Hutch. Carr. § 761; Langhlin v. Railway Co., 28 Wis. 204. In view of the foregoing we cannot say that there was no evidence of the delivery of the goods to the defendant, especially when we consider that all the means of knowledge upon the subject were within the defendant's possession, and were inaccessible to the plaintiff. The first instruction asked by the defendant is fully covered by the instructions given. The second, inasmuch as it informs the jury that the plaintiff failed in her proof, was properly refused. The record discloses no error. The judgment of the court be low must therefore be firmed.

3 Colo.A. 79

TAYLOR v. BUCKLEY.

erroneous. We do not so regard it. It has been held by the supreme court, and

REED, J. Appellee was employed by appellant to perform labor on a ranch; was a carpenter. There was no question in regard to the employment, and the price for mechanical labor; it was to be $50 per month. Appellee was to repair wagons, tools, and farming machinery; also to do some building, and repair buildings, etc. Appellant was to furnish lumber and materials. Employment commenced July 2d or 5th; terminated October 5th. A part of the time appellee was engaged in mechanical work, and a part of the time in haying and harvesting and ordinary ranch labor, appellant failing to furnish lumber and material. The only question of importance was as to the contract of hiring,-appellee claiming $50 per month regardless of the character of the work upon which he was employed; appellant contending that he was only to receive $50 per month for carpenter's work, and the price of ordinary ranch labor while otherwise employed. Upon this question the testimony was conflicting, but the finding was for appellee; verdict and judginent for $155. There was a claim made, and an attempt to recover, for expenses and time in coming to Denver after the employment was terminated. No such claim could be allowed, and it seems to have been ignored by the jury. The time testified to at $50 per month covers the amount of the verdict. The price allowed by the jury appears excessive for the character of the employment and the manner in which the party was occupied, but the question was purely one of fact, which it was the province of the jury to determine, and, according to the well-settled rule of this court, will not be disturbed. If it were within the province of this court, the fact might have been differ- | ently found, and a more equitable judgment entered. Various errors are assigned, principally upon the admission and rejection of evidence. A careful examination fails to disclose any serious error. No error is assigned upon the court's instructions to the jury. Proceedings by attach. ment were instituted, a traverse, and an issue, which was by the court submitted to the jury for a separate finding. The Issue was found for appellee. It is contended that the action of the court in submitting the question upon the attachment for separate finding by the jury was 'Affirmed on rehearing, May 23, 1893,

ous, no exceptions appear to have been taken to the action of the court, nor any objection made to the proceeding at the time; consequently, it cannot be reviewed here. The judgment should be affirmed.

3 Colo.A. 309

MILLER v. CITY OF COLORADO
SPRINGS.

(Court of Appeals of Colorado. May 8, 1893.) INTOXICATING LIQUORS-CRIMINAL PROSECUTION— VARIANCE.

Where the complaint and affidavit on which defendant was arrested charged a violation of an ordinance regulating the sale of liquor by a specified act of defendant, and the agreed statement of facts on which the case was tried showed that, if defendant was guilty at all, it was of another and different offense, the variance is fatal.

Appeal from El Paso county court.

J. K. Miller was convicted of a violation of an ordinance of the city of Colorado Springs regulating the sale of intoxicating liquor, and appeals. Reversed.

Ira Harris, for appellant. T. A. McMorris, for appellee.

was

THOMSON, J. This action was commenced in the police court of Colorado Springs upon the following complaint: "L. C. Dana complains that J. K. Miller and J. W. Miller are indebted to the plaintiff, the city of Colorado Springs, in the sum of $300, for violation of sections 1 and 2 of an ordinance of the city of Colorado Springs entitled 'An ordinance concerning the sale of intoxicating liquors,' passed the 13th day of February, A. D. 1889, in this, to wit: That said J. K. Miller and J. W. Miller did sell and dispose of intoxicating, spirituous, malt, vinous, fermented, and mixed liquors on Sunday, the 26th day of July, 1891, without having a prescription from a regular practicing physician therefor, within the corporate limits of the city of Colorado Springs, county of El Paso, and state of Colorado." Appended to this complaint the following affidavit: "Lo. C. Dana, plaintiff, being first duly sworn, says that he verily believes that said ordinance, and sections one and two thereof, in the foregoing complaint specified, have been violated as in said complaint set forth, and affiant has reasonable grounds to believe that said J. K. Miller and J. W. Miller, the parties charged, are guilty thereof." Upon the filing of the complaint and affidavit a warrant was issued upon which the defendant J. K. Miller was arrested and brought into court. The complaint was dismissed as to J. W. Miller, and upon a trial the defendant J. K. Miller was discharged. The plaintiff then took the case by appeal to the county court of El Paso county, where it was submitted upon a written stipulation, or agreed statement of facts, which is as follows: "It is hereby stipulated between the plaintiff and the defendant in the above-entitled action that the following

3 Colo.A. 305

JONES v. HAYDEN et al. (Court of Appeals of Colorado. May 8, 1893.) ASSIGNMENT OF VOID COUNTY WARRANT-RIGHTS OF ASSIGNEE AGAINST ASSIGNOR.

An assignee of a void county warrant has a cause of action against the assignor for the consideration paid for the warrant, rather than for its face value, no special or extraordinary damages being pleaded.

Appeal from district court, Chaffee county.

Action by Thomas S. Hayden and an. other against E. B. Jones to recover, with interest, the face value of a void county warrant assigned by defendant to plaintiffs. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

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

The following amended complaint was filed in this cause: "First. That at all the times hereinafter mentioned the said plain. tiffs were and still are copartners, under the firm name and style of Hayden & Dickinson. Second. That on or about the sixteenth day of July, A. D. 1885, the board of county commissioners of the county of Chaffee, in the state of Colorado, made its certain bill or instrument in writing commonly called a county warrant,' in the words and figures following, to wit: '$1,213.76. Chaffee county board of county commissioners. Treasurer of said county. July 16th, Term, 1885. Pay to E. B. Jones, or order, twelve hundred and thirteen and seventy-six one-hundredths dollars, for collecting county taxes out of moneys in the treasury not otherwise appropriated. J. A. Israel, Chairman Board County Commissioners. Attest: Ernest Wilbur, County Clerk. Per J. E. Cole, Deputy. No. 8,559.' Third. That on, to wit, the twentythird day of July, A. D. 1885, said instrument in writing was presented to the county treasurer of said county of Chaffee, for payment, and payment thereof was refused, because there were no funds in the treasury where with to pay the same, and said treasurer indorsed upon said warrant as follow, to wit: 'Presented, July 23d, 1885. No funds. This warrant draws in. terest from this date at 10 percent. per annum. E. B. Jones, County Treasurer. By W. H. Kellogg, Deputy,'-of all of which said defendant then and there had no notice. Fourth. That the said instrument afterwards, and before the commencement of this suit, on or about the first day of August, A. D. 1885, was sold, assigned, indorsed, and delivered by said defendant to these plaintiffs, and these plaintiffs then and there paid him, the said defendant, a valuable consideration therefor, to wit, the sum of one thousand dollars. Fifth. That said Chaffee county and the board of county commissioners thereof have at all times neglected, and do now neglect and refuse, by levy of taxes or otherwise, to pay or to provide for the payment of said warrants, or any part thereof, and that there is now due the plaintiffs thereon from the defendant the sum of $1,213.76, with interest at ten per cent. per annum from the 23d day of July, 1885. Sixth. And

the plaintiffs are informed and believe, and therefore allege, that at the time of the making said instrument in writing, and at the time the services for which said instrument was given were performed, the assessed valuation of all the taxable property in said Chaffee county was more than one million dollars and less than five million dollars, and amounts to the sum of, to wit, two million, four hundred and nine thousand, four hundred and fifty-eight dollars, and that the total indebtedness of said county for all purposes, exclusive of debts contracted before the adoption of the constitution of Colorado, was at said time more than two hundred and eighty thousand dollars, and more than twelve dollars for and upon each one thousand dollars of valuation aforesaid, and that therefore said instrument or warrant was, at the time of said sale, assignment, indorsement, and delivery of said defendant to these plaintiffs, void, illegal, and without validity. And so plaintiffs aver that any suit upon said instrument of writing against said the board of county commissioners of the county of Chaffee would be unavailing at any time from thence, hitherto, and now." "Eleventh. That said instrument in writing has not been paid, nor any part thereof, or the money due thereWherefore plaintiffs demand judg ment for the sum of twelve hundred and thirteen dollars and seventy-six cents, with interest thereon from the sixteenth day of July, A. D. 1885, to the date of judgment herein at the rate of ten per cent. per annum, and for their costs. To which a demurrer was filed, as follows: “(1) That the amended complaint does not state facts sufficient to constitute a cause of action. (2) That said amended complaint is uncertain, in this, that it does not state the amount of money paid by plaintiffs to the defendant for the said county warrant." The demurrer was overruled, and defendant stood by his demurrer and declined to answer. Judgment was entered for $20,001.29, from which an appeal was prosecuted to this court.

on.

G. K. Hartenstein, for appellant. John H. Denison, for appellees.

REED, J., (after stating the facts.) The only question to be determined is the correctness of the judgment overruling the demurrer. As near as can be gathered from the complaint the county authorities of Chaffee county issued to the appellant a county warrant for the sum of $1,213.76, which was presented for payment to the county treasurer, payment refused, and indorsement was made: "Presented July 23d, 1885. No funds. This warrant draws interest from this date at 10 per cent. per annum. E. B. Jones, County Treasurer. Appellant sold, assigned, and transferred the warrant to appellees, "who paid a valuable consideration therefor, to wit, the sum of $1,000.00." It is alleged also that, for the reasons stated in the complaint, "said warrant was void, illegal, and without validity." For the purposes of the demurrer the allegations in the complaint must be taken as true, the warrant regarded as void, and the

營 #

*

suit as having been brought to recover the | amount paid by appellees for the warrant, with the interest upon such sum. According to well-established rules of pleading, the allegations in regard to the warrant can only be regarded as inducement, or as explanatory of the cause of ac tion, while the cause of action for which recovery could be had was the amount of money advanced, and the interest. Testing the sufficiency of the complaint by these rules, it at once becomes apparent that no cause of action is stated in the complaint. Counsel and court appear to have fallen into the error of supposing the action properly based upon the warrant. Counsel prays judgment for the face of the warrant, and interest from the date of presentation, and the court gave a judgment upon the same basis. Judgment was entered by default, no evidence was taken, and damages assessed upon the warrant. The record entry is: "The complaint herein being duly verified, and the action being upon contract for liquidated damages, "etc. It will readily be seen that not only was the complaint defective, but the judgment erroneous. In all cases (unless special or extraordinary damages are pleaded) where the consideration for which the money was paid fails, and the purchaser has a right of action resulting from the character of the transaction, the measure of damage is the amount paid and the interest. The court erred in overruling the demurrer and allowing judgment for the amount of the warrant. The judgment will be reversed, and cause remanded.

3 Colo.A. 303

HUGHES v. COORS. (Court of Appeals of Colorado. May 8, 1893.) TROVER AND CONVERSION-WHAT CONSTITUTESREVIEW ON APPEAL-CONFLICTING EVIDENCE. 1. Where defendant, who owned the building in which were certain chattels bought by plaintiff, locked up such chattels, and prevented their removal, he was guilty of a conversion, and a recovery might be had for their value.

2. A verdict will not be disturbed because of conflicting evidence.

Appeal from district court, Arapahoe county.

Action by Adolph Coors against Paul T. Hughes to recover the value of goods alleged to have been converted by defendant. There was judgment for plaintiff, and defendant appeals. Affirmed.

R. T. McNeal, for appellant. Ezra Keeler, for appellee.

REED, J. It appears that appellant was the owner of certain premises in the city of Denver, which were rented to and occupied by one C. B. Downing as a saloon. Downing, being indebted to appellee, Coors, executed a chattel mortgage upon the furniture and fixtures on December 16, 1890, for $800, payable in 4, 8, and 12 months. On the 18th day of May, 1891, Downing made a sale to appellee of the chattels covered by the mortgage, and gave him the possession. Appellee immediately employed necessary help and

This

teams, and commenced to remove the property. In the afternoon, while so en gaged, appellant came in with an officer, who suspended the work of removal, took possession of the place, ordered it vacated by appellee's employees, which was done, the officer claiming to exercise his authority under some kind of a writ. A portion of the property, being unmoved, remained upon the premises. The building was locked, and possession taken of it and its contents by appellant, or the officer, or both. This suit was brought to recover the value of the remaining chattels. The complaint is in the ordinary form for the conversion. In the answer no legal defense is interposed, no justification or plea of a writ or any legal procedure, no claim of ownership of the property, lien upon, or right to possession. All such claims are disavowed, the attempted defense being that the goods were not removed, and that appellant wanted the possession of the building at once, and took it. was no defense whatever. It is shown that Downing had possession of the premises under lease; that the lease and possession were assigned and transferred to appellee; that the lease had not expired, consequently appellee was legally entitled to the possession of the premises, as well as chattels. The only legal question presented is whether the eviction of the parties from the premises, who were engaged in removing the property, the locking up of the premises, keeping them locked, and preventing the removal, was a conversion of the property. That it was, and might be so regarded by appellee, and recovery had for its value, is well sustained by the anthorities. In fact, so well settled and elementary that no authorities need be cited i its support; but see Richardson v. Atkinson, 1 Strange, 576; Philpott v. Kelley, 3 Adol. & E. 106; Dench v. Walker, 14 Mass. 500; McFarland v. Farmer, 42 N. H. 386; Rawson v. Tuel, 47 Me. 506; Duncan v. Stone, 45 Vt. 118.

The only other question to be determined was the value of the goods converted. The evidence was conflicting, but the value found was justified by a part, at least, of the evidence, and, having been found as a fact, will not be disturbed. The judgment must be affirmed.

1. Plaintiff conveyed unplatted land, worth from $6,000 to $10,000, to defendant, an improvement company, for $100, and took a bond in the penal sum of $500, only, conditioned to be void if defendant should survey, grade, and improve the streets on said land, make other valuable improvements thereon, and commence within 30 days to survey into lots, and plat, said land, or so much as it might deem practicable, and deed to plaintiff one-tenth of the lots, to be divided by alternate drawing. The evidence showed that the improvements contem plated were waterworks and a $75.000 hotel. Held, that the consideration for the deed to de fendant was the expenditure of money in im