cise of discretion or otherwise than through error and mistake allow the same or any part thereof. And defendant says that by reason of such erroneous payments the plaintiff became, and still remains, indebted to defendant in the said sum of $2,618.71." In the schedules embraced, (some 10 printed pages,) preceding each item, occurs the following: "To illegal and excessive fees and overcharges made and presented by said Leonard against and paid by said county in error and by mistake, and wrongfully charged and paid," or words of the same legal effect. It is provided, (Gen. St. § 521:) "Each organized county within the state shall be a body corporate and politic." "Sec. 523. The powers of a county as a body politic and corporate shall be exercised by a board of county commissioners therefor." By section 538 it is said: "The board of county commissioners of each county shall have power: Second. To examine and settle all accounts of the receipts and expenses of the county and to examine and settle and allow all accounts chargeable against the county, and when so settled they may issue county orders therefor as provided by law." "Sec. 545. No account shall be allowed by the board of county commisioners unless the same shall be made out in separate items and the nature of each item stated; and where no specified fees are allowed by law, the time actually and necessarily devoted to the performance of any service charged in such account shall be specified, which account so made out shall be verified by affidavit." The county commissioners therefore are invested with full and sole power to manage the business affairs of the county. "They are necessarily vested with reasonable discretion in the administration of county affairs." Roberts v. People, 9 Colo. 458, 13 Pac. Rep. 630. "The rule governing the allowance of claims by the board of county commissioners is that the authority must be found in the statute, either in express words or by fair implication. In other words, in order to bind the county, the county commissioners must act within the scope of their authority. Where a claim is clearly not a legitimate charge against the county, the county commissioners have no power to allow it, and its allowance would neither bind nor estop the county; as, for example, where the commissions of a collector of taxes are fixed by statute at a certain rate per cent., and the board allows him a greater rate. But the compensation for every legitimate charge against a county is not fixed by statute, nor even expressly provided for. It is therefore within the functions of the board of county commissioners, in such cases, to allow reasonable compensation." Roberts v. People, supra. It clearly appears from the account set out in the pleading that the services were performed by the clerk in the line of his duty; that the accounts filed were

preceding board of county commissioners, allowed, and warrants drawn for them; that a subsequent board seeks to recover the money paid. It is not alleged that the services were not performed; that they were not in the line of official duty; that the money was obtained by fraud; that the several accounts were not duly itemized and verified; nor is it alleged that the amount charged was excessive. It goes to the entire charge in each instance, declaring the entire amount an overcharge and illegal, and allowing nothing for the services rendered. Taking into consideration the power and discre tion vested in the board, and the further fact, which is not denied, that the services were performed, and the language of the court in Roberts v. People, supra, in regard to the discretion vested in the board, how can it be said by a subsequent board that the allowance of the respective claims was not permissible in the discretion of the former board, and their action conclusive? And this presents the question,-when there is neither fraud nor illegality in making the claims or in securing their allowance,-can a subsequent board review the discretionary acts of a former board? We do not find it necessary to decide the question in this case, but reason and authority are both against it. It is true, as a general proposition of law, that money obtained by fraud or mistake can be recovered back, modified in regard to mistakes in regard to the law. But when neither mistake of law or fact are alleged, but only, perhaps, the abuse of discretionary power, how can it be said to have been paid by mistake, or to have been illegally obtained? It would seem that counsel for the county labored under a misapprehension in regard to the law in supposing that the board had no discretion, and that all payments were illegal where the services were not prescribed and fees fixed, by overlooking the necessary discretion vested in the board and vitally necessary in the administration of county business. The allegations in the cross complaint are insufficient, in the manner pleaded, to constitute a cause of action. The judgment of the court in sustaining a demurrer to certain parts of the cross complaint and instructing the jury to find for the defendant (appellee) upon the pleadings was warranted, and must be affirmed.

MYERS v. BOWEN.

(Court of Appeals of Colorado. Oct. 9, 1893.) SALE-IMPLIED WARRANTY OF TITLE-WHEN ACTION LIES.

The vendee of a chattel cannot recover from his vendor on the implied warranty of title, when it appears that not he, but his vendee, was dispossessed of the chattel by the legal owner, and that he has not reimbursed such second vendee, or been made liable by him for the value of the chattel.

Appeal from Arapahoe county court. Action by Frank P. Bowen against A. W. Myers for breach of the implied warranty of title on the sale of a horse. From a judgment for plaintiff, defendant appeals. Reversed.

Bartels & Blood, for appellant. S. S. Abbott, for appellee.

REED, J. In 1887 appellee bought of appellant a horse, for $100. In 1889 he sold it to a man by the name of Parker. Parker sold to Burke. In September, 1890, one N. R. Pratt saw the horse, and identified it as one that had been stolen from him; and took and retained the possession. It appears that both appellant and appellee were satisfied with Pratt's claim of ownership, and allowed him to retain the animal without controversy. The action was brought by appellee to recover the price paid. On trial before a justice of the peace, the plaintiff obtained judgment for $80 and costs. An appeal was taken to the county court; a trial had, resulting in a judgment for the plaintiff (appellee) for $100 and costs, from which this appeal was prosecuted.

Several general assignments of error are made, which may be consolidated into one, and, when so consolidated, is, in effect, that the court erred in the law of the case, and that the judgment should have been for the defendant. Counsel, in argument, contend that the horse having been taken from the possession of Burke, a vendee, and appellee having retained the money received for the horse, and having neither voluntarily paid back, nor been made liable to pay back, the money received for the horse, by process of law, he had suffered no damage, and could not maintain his action. According to all the authorities, there is in the sale of the chattel an implied warranty of the legal ownership of the vendor, which amounts to a covenant that the vendee shall not be evicted from or disturbed in the possession of the chattel. A breach of such implied warranty gives a cause of action, but to maintain the action the vendee must be evicted from the possession of the chattel, or have reimbursed his own vendee; in other words, he must have sustained damage by reason of the eviction. In this case, appellee was not injured by Pratt taking possession of the horse. Burke, the third vendee, was dispossessed. Appellee had sold the horse, and received and retained the money; had not reimbursed any subsequent vendee, nor been made liable to do so. It does not appear that any claim had been or was being asserted by reason of the failure of title, and we are not to presume any claim would be asserted, or any damage sustained by the appellee. If the present action is sustained, he will have received pay for the animal twice,-once from his vendee, and again from the vendor. Of appellee's liability to his vendee, there can be no doubt;

but until he is in some way made llable, or voluntarily refunds the money received, he can maintain no action, having sustained no injury. The decisions of the courts as to when and to whom the vendor is liable are not perfectly harmonious, but the prevailing doctrine appears to be the rule as asserted in Burt v. Dewey, 40 N. Y. 283, where it is said, "No intermediate covenantee can sue his cove nantor till he himself has been compelled to pay damages upon his own warranty." Both in equity and law, this would seem to be the only just and practicable rule. The judg ment will be reversed, and cause remanded

1. Comp. Laws, § 1520, provides that a lien shall attach whether the materials are furnished or labor done at the instance of the owner of the building or his agent, and that every contractor or other person having charge of the construction shall be held to be the agent of the owner, for the purposes of this act. Section 1524 requires the claimant to file for record his claim, which shall state, inter alia, the name of the person by whom he was employed, or to whom he furnished the mate rial. Section 1529 makes it the duty of the owner, within three days after he obtains knowledge of the contract, to give notice that he will not be responsible therefor. Held, that a notice which gives the name of the person contracted with is sufficient, without showing what relation such person sustained to the owners. Lee, J., dissenting.

2. Under Comp. Laws, §§ 1520, 1522, which provide that every person furnishing materials to be used in the construction of any structure has a lien on the same, and that the land on which any structure is constructed is also subject to the lien, the improvements need not become a part of the realty, to entitle the persons doing the work and furnishing the materials to mechanics' liens.

3. The fact that a bill to enforce a me chanic's lien shows that the improvement be longs to one person, and the land to others, all of whom are made parties, does not render the bill demurrable.

4. Where infants are joined with adults as defendants in suits to enforce mechanics' liens, and the adults seek and obtain a dismissal as to the infants, such adults cannot afterwards complain that the infants are not parties. Lee, J., dissenting.

Appeal from district court, Bernalillo county; W. D. Lee, Judge.

Three actions consolidated and tried to gether, one by E. J. Post & Co. against George H. Miles and others, one by A. L. Stahlin against the same defendants, and one by the Mountain Electric Company and Smith & Prieston against the same defendants,-to enforce mechanics' liens. From a judgment sustaining demurrers to, and dismissing, the bills, plaintiffs appeal. Reversed.

The other facts fully appear in the follow ing statement by FREEMAN, J.:

These were proceedings to enforce mechan. ics' and material men's liens on the Armijo House, a hotel in the city of Albuquerque. They were consolidated and heard together in the court below. A demurrer was interposed by the adult defendants, which assigned, among other causes: (1) That two of the defendants were minors, and could not, therefore, either by themselves or guardians, create a lien on their real estate; (2) that the notice of lien showed that the contract for work and materials was entered into by the lien claimants with Miles, who was not the owner of the real estate, without showing what relation the said Miles sustained to the owners of the realty; (3) that the petition showed that a part of the improvement or structure, viz. a dynamo, belonged to one of the defendants, while the ground on which it was erected belonged to others of the defendants. The demurrer was sustained, with leave to the complainants to amend their bill. The complainants declining to amend, the bill was dismissed. On a subsequent day of the same term of the court, however, the complainants took leave to amend their bul by striking out the names of the minors and their guardian. Leave was likewise granted to the defendants to amend their demurrer by assigning the nonjoinder of the minors as a ground thereof. This order was made nunc pro tunc, so as to relate to the day on which the demurrer was sustained. Thereupon, the bill and demurrer were considered as amended, and the bill stood dismissed.

Bernard S. Rodey, for appellants A. L. Stahlin and Post & Co. Johnston & Finical, for appellant Mountain Electric Co. Neill B. Field, for appellees.

FREEMAN, J., (after stating the facts.) The statute (Comp. Laws, § 1524) requires the lien claimant to set out in his notice, inter alia, the name of the person by whom he was employed, or to whom he furnished the material. The notice in question alleges "that George H. Miles is the name of the person who employed them to perform said labor and furnish said material." This is a literal compliance with the statute. It is insisted, however, that it does not meet the substantial requirements of the statute, in that it does not show the relation existing between Miles, who ordered the materials, and the other de fendants, who are the owners of the property to be charged with the lien; that, as the notice is the foundation of the action, it must contain within itself averments sufficient to charge the property with the lien, and must therefore show that the party contracting for the labor or materials was an authorized agent of the owners of the property sought to be charged; that otherwise a mere stranger might, without the knowledge of the owner, create a charge upon the property. In support of this contention, we are referred to the cases of Warren v. Quade, 29

or his * or

Pac. Rep. 827, and Manufacturing Co. v. Wilson, Id. 829, wherein the supreme court of Washington, construing a statute identical with ours, held that the notice must show the relation between the owner and the person to whom the materials were furnished. "It will be further seen," say the court, "from said notice, that the goods were not furnished to the owner directly, but were furnished to a firm named in the notice. In such a case, we think that the statement of terms and conditions of contract should show that such a relation existed between the firm to which they were furnished, and the owner, as will bring it within the list of those who, under the lien law, could, for the purposes thereof, bind the owner." We cannot accept this as a sound construction of our lien laws. Section 1520, Comp. Laws, provides that a lien shall attach whether the materials are furnished or labor done "at the instance of the owner of the building * agent; and every contractor other person having charge of the construction shall be held to be the agent of the owner for the purposes of this act." Section 1524 requires the claimant to file for record his claim, prescribing what shall be set out in said claim. The appellants filed their claim as required by the statute, setting out everything required by the statute; among others, the naine of the party at whose request the materials were furnished. This party, the bill states, was "in charge of the construction, improvements, alteration, and labor" on the building. If this is true, the statute makes him the agent of the owner "for the purposes of this act." It is insisted, however, that the bill cannot be looked to, with a view to correct any error or omission contained in the notice. This would be true as to any positive and substantial defect, but there is none. The statute does not require that the lien claimant shall advise the owner that the lien was created by virtue of a contract made with his (the owner's) agent. It requires the claimant to give the owner the name of the party with whom the contract was made, and thereupon it becomes the duty of the owner, within three days after he shall have obtained knowledge of the contract, to give notice that he will not be responsible for the same. Comp. Laws, § 1529. Aside from the fact that the statute does not require the lien claimant, in his notice, to advise the owner of the relation existing be tween him and the claimant, what good purpose would such information serve? If the party claiming to be the agent of the owner is not in fact his agent, but a mere volunteer, no one is in a better position to know that fact than the owner, and the statute affords him an opportunity to protect himself against any contract made by such unauthorized party. He has only to give the lien claimant notice that he will not be responsible for the contracts of such party. But suppose it should occur, as a matter of fact,

that such contractor was not the agent of the owner, but a mere volunteer. If, under such circumstances, the owner should allow him to contract debts for supplies on the credit of his supposed agency, without giving the mechanic or furnisher the required notice, then, in equity and good conscience, he ought to be bound by such contract. The mechanic, in good faith, contracts with the supposed agent, gives the owner notice of the fact, and that he intends to claim a lien for his work. The owner remains silent until the work is done, and then seeks to defeat the lien because the supposed agent was not authorized to make the contract, or, as in this case, because the lien claimant did not advise him that the contractor was his agent. We do not think this reasoning sound. A substantial compliance with the statute is all that is required, (Phil. Mech. Liens, p. 570;) and, without undertaking to reconcile the somewhat conflicting authorities as to whether statutes creating liens in favor of mechanics and material men should receive a strict or liberal construction, it is enough to say that our statute does not require the lien claimant to state in his notice the relations existing between the party contracted with, and the owner of the land or improvements. Besides which, no good reason seems to exist why he should give the owner such information. It may be that the mechanic does not know what relation exists between the parties, and the very purpose of the notice may be, in part at least, to ascertain from the owner whether the party contracted with is authorized to create the debt. Should the owner, promptly, as required by the statute, disclaim any such relation, the mechanic or material man may take steps to secure himself. If, however, the owner remains silent, it is to be presumed that the indebtedness was properly located, so that such owner will afterwards be estopped to deny the authority of the supposed agent.

We have examined with some care the case of Heald v. Hodder, (Wash.) 32 Pac. Rep. 728, wherein the decision of the court in Warren v. Quade is examined and reaffirmed; and, with great respect for that court, the reasons assigned seem to us wholly insufficient to maintain the rule. The court admits "that there are some cases which hold that if the lien notice contains the allegations specially required by the statute to be set out therein, it is prima facie valid." The learned judge, however, proceeds to say that "such decisions do not so well harmonize with our views as those which hold that there must be sufficient facts set out in the lien notice to prima facie show that a lien can be enforced." If the court, by the use of this language, means to hold that setting out in his notice everything that the statute requires does not constitute even a prima facie claim in favor of the mechanic .or material man, we think the decision stands alone, and unsupported by any au

*

thority, for, aside from the fact that the stat ute makes "every contractor, sub-contractor. architect, builder or other person having charge * * of the construction ・・ the agent of the owner for the purposes of this act," (Comp. Laws, § 1520,) such contractual relations, without the aid of the statute, would invest the contractor or builder with the authority to bind the property of the owner. It is not pretended that mere possession of the premises would authorize a mere tenant to create the lien. The tenant may be in possession for no other pur pose than to take care of the premises. Baxter v. Hutchings, 49 Ill. 116; Proctor v. Tows, 115 Ill. 138, 3 N. E. Rep. 569. But even in cases of this character, where the tenant has no authority to improve, if the owner have knowledge of the fact, and allow the tenant to create the lien, he is estopped. Higgins v. Ferguson, 14 Ill. 269; Donaldson v. Holmes, 23 Ill. 85. But a contractor hav ing charge of the erection or repair of a building or structure is the agent of the owner for all the purposes incident to such work, and, among others, that of procuring material and employing labor, and incident to this is the authority to create the lien. Parker v. Bell, 7 Gray, 431; Neeley v. Searight, (Ind. Sup.) 15 N. E. Rep. 598; Weeks v. Walcott, 15 Gray, 54; Clark v. Kingsley, 8 Allen, 543; Phil. Mech. Liens, 52-65. "If he [the owner] has authorized the employment of the laborer, the lien attaches by operation of law, unless he takes the necessary meas ures to prevent it." Clark v. Kingsley, 8 Allen, 545. The fact appearing that the ma terials were furnished, or the work done, with the knowledge of the owner, the law creates the agency. Pomeroy v. Timber Co., (Neb.) 49 N. W. Rep. 1131. In short, so closely interwoven are the relations existing between the contractor and the owner that it has been held that a notice to the owner that the material man held a lien by virtue of a contract made with him (the owner) is satisfied by proof that the materials were furnished under a contract with the contractor. Newhouse v. Morgan, (Ind. Sup.) 26 N. E. Rep. 158, citing Neeley v. Searight, 113 Ind. 316, 15 N. E. Rep. 598. In the case of Lumber Co. v. Gottschalk, 22 Pac. Rep. 862, the supreme court of California. construing a statute identical with ours, say: "There is nothing in this section, or any other, that requires the material man to state in his claim of lien what relation the person to whom he furnished the material bore to the owner,-whether contractor or agent. Nor does the burden of determining whether any contract made, or attempted to be made, between the owner and contractor, was valid or not, rest on him, when he comes to file his lien. He must state the facts re quired by the statute." In view of the almost unbroken chain of authorities, and in view of the plain provision of our statute that makes the contractor or person in

charge of the improvement the agent of the owner for the purposes of the lien, and of the further fact that a mere stranger can crcate the lien, if the owner have knowledge of the work, and fails within three days to disavow his responsibility, it is difficult to appreciate the reasoning by which it is sought to interpolate the additional requirement (confessedly not within the letter of the statute) that the mechanic or material man shall, in addition to what the law requires, advise the owner whether the party in charge of the building or structure is his (the owner's) agent, or a mere stranger. The name being given, as required by the statute, who but the owner is in a position to know whether or not he has given such person authority to bind him? It is proper to observe, in this connection, that one of the demurrants, Miles, was himself the party in charge of the work, and the party with whom the contract was made, and who also had some personal interest in the improvements; and yet he says that the claimants have no right of action against him, because, forsooth, he is not advised by complainants' notice whether or not he was authorized to purchase the materials or contract for the work.

It is contended by the solicitor for the appellees that, in addition to the foregoing, there is another objection to the validity of the proceeding on the part of the Mountain Electric Company and Smith & Prieston, which is this: The bill shows that defendant Miles contracted with complainant company for a dynamo and fixtures, and with complainants Smith & Prieston to put the same in place, and that defendant Perfecto Armijo became the owner of the dynamo, and that the other defendants, excepting Miles, were the owners of the real estate; that it does not, therefore, appear that the dynamo became a part of the realty, but the contrary. The statute does not require, as a condition upon which the lien on the realty is made to depend, that the improvements should become a part thereof. The lien attaches to the "structure," and to the land upon which it is "constructed." tion 1520 provides that "every person furnishing materials to be used in the construction * * * of any mining claim or other structure * * * has a lien on the same," and section 1522 declares that "the land upon which * any structure is constructed * is also subjected to the lien." The cases of Schettler v. Vendome, etc., Bath Co., 27 Pac. Rep. 76, and Kellogg v. Manufacturing Co., 25 Pac. Rep. 461, fail to support the defendants' contention that the structure must become a part of the realty, or a fixture, before the lien can attach to the land. In the latter case, it was held that the description of the land sought to be charged with the lien was fatally vague and uncertain, and that under the statute of that state (Washington) no lien could be

Sec

maintained upon the building, as such, apart from any interest in the land upon which it is situated. The lien could not be enforced against the building, because it could not be separated from the realty, of which it was a part; and no lien could be enforced against the land, because it was not sufficiently described. In the Vendome Case, it was shown that the work (repairing, moving, and refitting various steam and soil pipes connected with a bathing establishment) did not go towards the improvement of the building, in any way, but "were all independent of the building," and that under the statutes of that state no lien could be created on personal property; that, therefore, no lien of any character was created. The objection in the case at bar proceeds upon the assumption that the dynamo was a mere "trade fixture," and did not become a part of the realty, and that, therefore, its erection on the lot in question did not create a lien on said lot. What constitutes a fixture has given rise to much discussion. Mr. Ewell, in his work on Fixtures, gives us three tests: (1) Real or constructive annexation of the article in question to the realty; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make it permanent. Ewell, Fixt. p. 21. According. ly, it has been held that a furnace is a fixture. Bank v. Bonacum, (Neb.) 51 N. W. Rep. 233. Whatever, as betwen vendor and vendee, passes by deed of the premises, without special enumeration, is a fixture. WattsCampbell Co. v. Yuengling, (N. Y. App.) 25 N. E. Rep. 1060. Mr. Ewell lays it down as the clear tendency of modern authority to give pre-eminence to the question of intention. Ewell, Fixt. p. 22, and authorities cited. Tested by this rule, it is difficult to determine, on demurrer, whether the dynamo was or not to be regarded as a fixture. The bill states that the structure (electrical apparatus) was put into the building under a contract with Miles, who had some interest in the building; that the alleged and reputed owner of the said electrical dynamo and apparatus is defendant Perfecto Armijo; "and your petitioners further represent that, if said Perfecto Armijo has any interest in said plant, it is subject to, and was acquired after, the lien hereinafter claimed attached." It is further charged that the improvement consisted of putting in place and equipping the dynamo, by connecting it with the other apparatus by means of wire attached to wall and ceiling; that said work constituted a part of a valuable improvement on the premises, etc. These statements in the bill bring the claimant clearly within the rule entitling him to relief. And the fact that the structure, the dynamo, belonged to one party, and the land upon which it was placed to another, all of them being made parties defendants, does not make the bill