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2. PRINCIPAL AND AGENT (8823, 123*) be turned over to Burnell on same terms and AGENCY – PROOF -- CIRCUMSTANTIAL EVI- conditions as purchased by McCreery; that

An agency, as well as the extent of the all hay consigned to McCreery on commission agent's authority, may be proved by circum- should likewise be delivered to Burnell to stantial evidence.

be handled in the same manner; that MC[Ed Note. For other cases, see Principal and Creery should not disclose the fact to parties Agent, Cent. Dig. $8 41, 420-429; Dec. Dig. selling the hay that he was acting as agent $$ 23, 123.*] 3. PRINCIPAL AND AGENT (8 190*)—EVIDENCE. for Burnell, but should represent that he was

In an action against an undisclosed prin-acting on his own account or on account of cipal through dealings with his agent, where the L. M. McCreery & Co. (which was L. M. Mcevidence was sufficient to go to the jury on Creery). It further states: That as such the question of the agency, letters of the alleged agent to plaintiff, authorizing shipments agent McCreery received from plaintiff on of goods by plaintiff and other transactions be- consignment two cars of hay containing a tween the parties, were competent to show that certain amount, which cars were immediately purchases were made by defendant of plaintiff.

[Ed. Note. For other cases, see Principal and turned over to Burnell, pursuant to said Agent, Dec. Dig. $ 190.*]

agreement; that afterwards, between the 18th 4. TRIAL ($ 59*)-ORDER OF PROOF-DISCRE- and 24th of January, 1906, McCreery purTION OF TRIAL COURT.

chased 12 cars of hay from plaintiff containThe order of proof and other such matters ing a certain number of pounds for which are largely within the discretion of the trial they agreed to pay plaintiff $6.50 per ton, f.

[Ed. Note. For other cases, see Trial, Cent. o. b. at Bayard, Neb.; that said cars were imDig. $ 139; Dec. Dig. § 59.*]

mediately shipped to Denver, where upon 5. PARTIES (8 92*)—MISJOINDER OF PARTIES--their arrival they were turned over to deWAIVER.

fendant Burnell, pursuant to said agreement; The objection that there was a misjoinder that Burnell was the real purchaser of said of parties defendants was waived by being raised too late when made for the first time on cars of hay and the real consignee of the othmotion in arrest of judgment.

er two cars so consigned to McCreery; that, [Ed. Note.-For other cases, see Parties, Cent. after paying all commission and charges on Dig. $$ 150, 152; Dec. Dig. $ 92.*]

the cars consigned, plaintiff ought to have 6. PARTIES ($ 75*) DEFECT OF PARTIES

realized therefor the sum of $6.50 per tor; WAIVER.

A defect of parties is waived if not raised that defendants have failed and neglected either by demurrer or answer,

to pay plaintiff the amount received for said [Ed. Note.-For other cases, see Parties, Cent consigned cars, or any part thereof, and have Dig. $$ 115-116; Dec. Dig. $ 75.*)

failed to pay for the cars so purchased ; that 7. PRINCIPAL AND AGENT ($ 145*) - UNDIS

UNDIS- there is due and payable to plaintiff from CLOSED PRINCIPAL-ACTION-LACHES.

Where the evidence supported a finding that defendants for said hay so consigned and in making purchases from plaintiff one M. acted sold the sum of $930.39, etc. There was no as agent for defendant, his undisclosed principal, appearance by defendant L. M. McCreery, or by reasonable diligence could have known, of L. M. McCreery & Co. The defendant Burthe agent's financial irresponsibility.

nell filed a separate answer, in which he de[Ed. Note.--For other cases, see Principal and nied all the allegations in the second count Agent, Dec. Dig. $ 145.*]

of the complaint. Appeal from District Court, City and Coun- First. It is contended that the court erred: ty of Denver; Samuel L. Carpenter, Judge. (a) In denying the defendant's motion for

Action by Charles 0. Morrison against L. judgment upon the pleadings; (b) in overM. McCreery, F. A. Burnell, and others. ruling the objections of the appellant, BurJudgment for plaintiff, and defendant Bur- nell, to the introduction of any evidence in nell appeals. Affirmed.

support of the second cause of action; (c) in F. A. Williams, for appellant. Thomas M. refusing to grant a nonsuit. These conten

tions are not well taken. The second count Morrow, for appellee.

in the amended complaint (as against a genHILL, J. Verdict of the jury and judg- eral demurrer) sufficiently alleges a cause ment in favor of the appellee, plaintiff below, of action against an undisclosed principal against the appellants in the sum of $939.38, through dealings with his agent. When confrom which the appellant, F. A. Burnell, ap- sidered as a whole, including all the circumpeals.

stances shown surrounding the parties, we The second count in the complaint, upon think that there is evidence upon which this which recovery was had, alleged an agree- finding can be based; and, although it might ment between the appellants, F. A. Burnell be more satisfactory, yet, taking into considand L. M. McCreery, in substance: That the eration the position of the defendants and latter should act as an agent for the former the next to impossibility to establish the fact in the purchase of hay and other products, by direct proof, the verdict of the jury should to purchase the same in the name of Mc-, not be disturbed upon this ground. The moCreery & Co., or in the name of L. M. Mc- tion for nonsuit was properly overruled. An Creery; that as fast as purchased they should agency may be proved, as well as the extent of the authority of the agent, by circumstan- , waived. Fitzgerald v. Burke, 14 Colo. 559, tial evidence. Union Gold Mining Co. v. 23 Pac. 993; People ex rel. Jones et al. v. Rocky Mountain Nat. Bank, 2 Colo. 565; | District Court, 18 Colo. 293, 32 Pac. 819; Higgins et al. v. Armstrong, 9 Colo. 38, 10 Wilson v. Welch, 8 Colo. App. 210, 46 Pac. Pac. 232; Gambrill et al. v. Brown Hotel Com- 106; Miller v. Kinsel, 20 Colo. App. 346, 78 pany, 11 Colo. App. 529, 54 Pac. 1025.

Pac. 1075. Second. Complaint is made to the introduc- The fourth contention, laches of the appeltion of the letters of McCreery to the appel-lee, it is urged he ought not to recover upon lee in evidence, on the ground that there was account of his lack of business methods, in no evidence to establish the agency, and that this, that with all modern mail and telegraph agency cannot be established by the declara- facilities at hand he neglected to make any tion of an alleged agent, and that it was er- inquiries concerning McCreery's financial roneous to admit in evidence the declarations standing or business integrity, but went of an alleged agent unless his agency has ly on filling his orders when a reasonable been otherwise established. The McCreery investigation would have shown his irresponletters do not admit the agency, nor make sibility. This would have some force were any statements regarding it, and they cannot the judgment based upon the first count in be construed as declarations of his in any the complaint, which charged fraud and conmanner tending to establish it. We think spiracy, but which count was, by proper inthe evidence, as a whole, was sufficient to go structions, eliminated from the consideration to the jury upon the question of the agency of the jury. In this case the question of the Such being the case, his letters, which au- agency, and also the authority of the agent thorized the shipments and other transactions to perform the acts for which the appellant between the parties, were competent to show was held, were submitted to the jury, which, the purchases were made. The order of proof under proper instructions, found adversely and other such matters are largely within to his contentions. Assuming this finding to the discretion of the trial court. Robert E. be correct, and that McCreery was the agent Lee S. M. Co. v. Englebach et al., 18 Colo. for the appellant, Burnell, and that he had 106, 31 Pac. 771; People ex rel. Denison v. the authority to make those purchases from Butler, 24 Colo. 401, 51 Pac. 510; Kindel v. the appellee for the appellant who became liaLe Bert, 23 Colo. 385, 48 Pac. 641, 58 Am. St. ble for their payment, it then becomes immaRep. 234; San Miguel C. G. M. Co. et al. v. terial to the appellant whether or not the Bonner, 33 Coto. 207, 79 Pac. 1025.

appellee knew, or by reasonable diligence Third. It is contended that a joint judg. I could have obtained, such information conment cannot be sustained, and that, if Mc-cerning McCreery's financial irresponsibility. Creery was an agent, he was not liable as

Other errors assigned have been considered. principal; and, if not an agent, and he was Perceiving no prejudicial error against the liable as principal, then Mr. Burnell was rights of the appellant, Burnell, the judgment not liable as principal; and that a joint judg-will be affirmed. ment cannot be rendered upon an individual Affirmed. or single obligation. Mr. McCreery is not before this court making any complaint as to STEELE, C. J., and GABBERT, J., concur the judgment against him, either as principal or agent. Mr. Burnell first filed a demurrer to the complaint claiming that several

MITCHELL V. TROWBRIDGE. causes of action had been improperly united. This he withdrew and filed a separate answer

(Supreme Court of Colorado. Dec. 6, 1909.) to the second count of the complaint, denying 1. QUIETING TITLE ($ 10*)-TITLE OF PLAIN

TIFF. all its averments. At the commencement of the trial, he moved for judgment on the by a person in possession, claiming ownership

An action to quiet title may be maintained pleadings because the complaint failed to under color of title. state a cause of action. He thereafter object- [Ed. Note.-For other cases, see Quieting Tied to the introduction of any testimony in tle, Cent. Dig. $$ 37, 38; Dec. Dig. $ 10.*] support of the second cause of action for the 2. TAXATION ($ 788*)-VALIDITY-BURDEN OF

PROOF. same reason. At the close of plaintiff's case,

One relying on a treasurer's tax deed has the appellant, Burnell, moved for a nonsuit the burden of showing a compliance with the upon the second cause of action because no law, except as to matters of which the deed is such contract of agency had been proven. made prima facie evidence, by Mills' Ann. St. After the verdict was rendered against him, a 3902, and he must show the assessed value of

the property and the due service of the notice of motion in arrest of judgment was made, in redemption required by section 3926j, if the which, for the first time, it is stated, "There valuation was $500 or over. is a misjoinder of parties defendant in the [Ed. Note.-For other cases, see Taxation, second cause of action.” We think this ques- Cent. Dig. $$ 1559, 1563; Dec. Dig. $ 788.*] tion was waived by being raised too late. A Appeal from District Court, City and Coundefect of parties must be raised either by de- ty of Denver; P. L. Palmer, Judge. murrer or answer, and, if not so raised, it is Action by Ellen G. Trowbridge against Walter C. Mitchell. From a judgment for plaintiff, defendant appeals. Affirmed.

DAVIS v. PEOPLE ex rel. TOWN OF

BRUSH. Laura Tilden Ray, for appellant. John H.

(Supreme Court of Colorado. Dec. 6, 1909.) Gabriel, for appellee.

1. CRIMINAL LAW (§ 1042*)—APPEAL-PRESEN

TATION OF QUESTIONS IN LOWER COURT. STEELE, C. J. In an action to quiet title

The objection that a judgment that defendto a certain lot in the city and county of ant, convicted of violating town ordinances, Denver, plaintiff at the trial produced a wit- stand committed till his fine is paid, is uncertain

and unintelligible because the place of commitness, who testified that he had collected the ment is not named, when not made in the trial rents for the period of eight or nine years; court, will not be considered on appeal. that the plaintiff had been in the actual pos- [Ed. Note. For other cases, see Criminal Law, session of the premises continually during Cent. Dig. $ 2650; Dec. Dig. $ 1042.*] the year 1904 prior to the bringing of the 2. MUNICIPAL CORPORATIONS ($ 643*)-VIOLAsuit, and introduced a deed from E. G. Trow

TION OF ORDINANCES-PROSECUTION-JUDG

MENT-EFFECT OF APPEAL BOND. bridge conveying all his right, title, and in

A judgment that defendant stand committed terest in the property to the plaintiff, and till his fine for violating town ordinances is paid then rested his case. The defendant, in sup- is proper, though the fine is secured by an apport of the issue that he was the owner and proved appeal bond when the judgment is renentitled to the possession, offered a treasur- [Ed. Note.-For other cases, see Municipal er's deed to the same premises. The court Corporations, Cent. Dig. § 1416; Dec. Dig. $ refused to admit the deed in evidence, and 643.*] found the issues in favor of the plaintiff, Appeal from Morgan County Court; Tyler ordered the treasurer's deed canceled, and, D. Heiskell, Judge. as a condition precedent to the entering of R. Dent Davis was convicted of violating final judgment, required the plaintiff to pay ordinances of the town of Brush, and apinto court, for the use of defendant, the sum peals. Affirmed. of $55. From this judgment the defendant

Allen & Webster, for appellant. M. M. appealed.

House and John Hipp, for appellee. The points discussed in the appellant's brief are, that: (1) “The motion for nonsuit

STEELE, C. J. The trial of the defendshould have been granted, because the plain- ant in the county court on appeal from the tiff had failed to show that he was the own- police magistrate's court, resulted in his coner of the premises.” An action to quiet title viction. He was fined the sum of $50 and may be maintained by a person in possession, costs for the violation of the ordinances of claiming ownership under color of title. (2) the town of Brush. In the judgment it is “That the treasurer's deed should not have ordered that the defendant stand committed been refused as evidence." The defendant until the fine is paid. Defendant appealed to having relied upon the treasurer's deed as a the Court of Appeals. muniment of title, the burden was upon him

The assignment of error is: That the court to show a compliance with the law, except erred in rendering and entering judgment as to such matters as by the deed itself are against the appellant that he stand commitmade prima facie evidence by section 3902, ted until the fine and costs were paid : (1) Be2 Mills' Ann. St. It, therefore, was incum- cause the fine was secured by an approved bent upon him to show: (1) The assessed appeal bond at the time the judgment was value of the property, and, if $500 or over, rendered; and (2) because the judgment is that notice of the time of redemption had uncertain and unintelligible. been given as required by the statute. Sec

There is no bill of exceptions. The obtion 3902a (3926j) 3 Mills' Ann. St. (2) jections are that because an appeal bond had Whether at the time the notice was required been approved, the court should not have to be given the land was occupied or vacant, ordered defendant committed until the payand, if occupied, that he had served notice ment of the fine, and that as no place of upon the occupant or occupants, as well as imprisonment was mentioned in the judgupon the other persons described in the stat- ment, it is uncertain and unintelligible. The ute. The defendant failed to show that the court would probably have designated one assessed valuation was under $500, and fail of the places mentioned in the statute, if his ed to show that the premises were vacant attention had been called to the omission, and unoccupied. The treasurer's deed, there but no such objection was made, and we fore, was not admissible. Richards v. Beggs, shall not consider it here. Upon the au31 Colo. 186, 72 Pac. 1077; Treasury T. W. & thority of Saner v. People, 17 Colo. App. 307, R. Co. v. Gregory, 38 Colo. 212, 88 Pac. 445. 69 Pac. 76, the court properly ordering that

No prejudicial error appearing in the rec- the defendant be committed upon default in ord, the judgment is affirmed.

payment of the fine, the judgment is affirmed, Judgment affirmed.

Judgment affirmed.

WHITE and BAILEY, JJ., concur.

GABBERT and HILL, JJ., concur.

that the plaintiff had caused the case to be THOMPSON v. CRESCENT MILL & ELE- set before Judge McCall's division and was VATOR CO.

on the board in that division; that affiant (Supreme Court of Colorado. Dec. 6, 1909.)

was informed that the case was transferred

from Judge Lindsey's division without no1. APPEAL AND ERROR (8 113*) - QUESTIONS

REVIEWABLE - REFUSAL TO SET ASIDE DE- tice to affiant's attorney, and called up in FAULT JUDGMENT.

that division, and default taken. The Supreme Court may review the refus

Nothing appears in the record to advise al to set aside a default judgment where the record of the proceedings culminating in the us upon what ground the court based his dejudgment and those subsequent thereto are cision denying the motion to set aside the brought up for review.

judgment. We observe, however, that the [Ed. Note.--For other cases, see Appeal and affidavit contains no statement based upon Error, Cent. Dig. $ 766; Dec. Dig. $ 113.*]

the affiant's knowledge, except that he was 2. JUDGMENT (8 143*) — DEFAULT - SETTING engaged in the pursuit of his usual vocation ASIDE-GROUNDS. Where counsel for defendant was not pres

on February 1st, and did not know that the ent in the county court on the day fixed for case had been set for trial for that day. Bethe trial of the cause, but relied on the state cause of this, the court might have properly ments of employés in the clerk's office that the rejected the affidavit and denied the motion, cause might not be reached, and two judges were trying causes on the docket, and the cause was but we shall assume that it has been estabtransferred from one judge to the other, who lished by proof that the cause was set for rendered default judgment, the refusal to set trial for February 1st; that some one conaside the judgment was not an abuse of the nected with the clerk's office had notified court's discretion.

[Ed. Note.-For other cases, see Judgment, counsel that probably the case would not be Cent. Dig. 88 281, 282; Dec. Dig. $ 143.*]

reached; that the title of the case was upon Appeal from County Court, City and Coun- the calendar for February 1st in the courtty of Denver; Chas. McCall, Judge.

room presided over by one person, and that, Action by the Crescent Mill & Elevator without notice to the defendant, or his counCompany against W. G. Thompson. From an sel, the cause was heard in a different room, order denying a motion to set aside a default and before another judge. The fact remains, judgment, defendant appeals. Affirmed.

however, that neither defendant nor his coun

sel appeared before the county court on that R. H. Gilmore, for appellant. Rogers, El-day prepared to try the cause. lis & Johnson, for appellee.

The cause was regularly set for trial. It STEELE, C. J. The defendant not ap

is the duty of counsel to appear before the pearing in the justice's court, default judg-court on the day his case is to be tried, and ment was entered against him. He appealed to remain in the courtroom until excused

by the judge. He must not rely upon the to the county court. The county court fixed February 1, 1907, at 9:30 o'clock, as the time statements of the employés of the clerk's ofof the trial. On that day the defendant not fice that his case may not be reached. The appearing, the plaintiff took judgment. On judge has absolute control of the calendar February 4th following, the defendant filed of his court. He may try the cases in the his motion to set aside the judgment. The order in which they appear or he may disremotion was denied and the defendant ap- the county court where the judge is author

gard the calendar. This is especially true of pealed to this court.

We are authorized to review the action of ized to call to his aid the judge of another the trial court in declining to set aside the court; and when two judges are trying the judgment when, as in this case, the record causes on the docket of the county court, of the proceedings culminating in the judg- we know of no valid objection, there being ment, as well as those subsequent thereto, are no rule of court providing a different probrought here for review. The affidavit in cedure, to transferring causes from one to support of the motion to vacate the judg- another without notice to counsel. If counsel ment, sets forth, in substance, that the de- had been present on the day fixed for the fendant did not know that the case was set trial of the cause, the case could not have for trial; that on the day of the trial he been transferred without his knowledge; and was pursuing his usual vocation; that he as we cannot say that the court abused his was informed by his attorney that the attor- discretion in declining to set aside his judgney had communicated by telephone with an ment, it will be affirmed. employé in the office of the clerk of the coun- Judgment affirmed. ty court, and was informed that the case would probably not be tried on February 1st; CAMPBELL and MUSSER, JJ., concur.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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J. M. Gearin, for appellant. A. S. BenLAURY V. NORTHERN PAC. TERMINAL nett, for respondent.

CO. (Supreme Court of Oregon. Jan. 4, 1910.) MOORE, C. J. (after stating the facts as 1. RAILROADS ($ 355*) OCCUPATION

OF above).

It is maintained that errors were STREET — RIGHTS OF PUBLIC — CARE

OF PUBLIC — CARE RE-committed in denying a motion for a judgQUIRED.

The public has an equal right with a railment of nonsuit, and in refusing to direct a road company to the free use of a highway upon verdict for the defendant, to which rulings which the railroad track is laid, and the railroad of the court exceptions were taken.

As company will not be permitted to omit any rea- these propositions substantially embody the sonable duty that may tend to the safety of the same legal principle, they will be treated as public upon such street.

[Ed. Note.-For other cases, see Railroads, a single question, to determine which the Cent. Dig. § 1221; Dec. Dig. $ 355.*]

testimony relating to the alleged negligence 2. RAILROADS ($ 400*)-INJURIES TO PERSON of the defendant will be reviewed. ON_TRACK-EVIDENCE-QUESTION FOR JURY. The plaintiff, on October 25, 1907, the day

Evidence in an action for injuries received she was hurt, had been employed in Portwhile crossing a railroad track operated on a land at the factory of the American Can street held sufficient to take the case to the jury on the issue of negligence.

Company, located on the northerly side of [Ed. Note.-For other cases, see Railroads, North Front street, which highway at this Cent. Dig. $8 1365–1367; Dec. Dig. $ 400.*] place extends north about 48° west. In 3. RAILROADS ($ 383*)-INJURIES TO PERSON the center of that street is laid one of the ON TRACK-CONTRIBUTORY NEGLIGENCE.

defendant's railroad tracks, and connected a car while crossing a street on which the rail therewith by a switch, about 100 feet eastroad was being operated. It was dark, and the erly of the factory, is a spur track which car was being backed by an engine which was curves northerly to and runs parallel with also backing. There was no light displayed at that

that building. Fourteenth street extends the rear of the car, and no switchman to give warning of its approach, but the company claim- due north and terminates at North Front ed that the bell was rung. Held that, in order street, and from the east line of the former to charge plaintiff with contributory negligence, highway at its junction with and at a right it must be shown that she heard the beli. [Ed. Note.-For other cases, see Railroads, walk parallel to and connecting with the

angle to the latter street extends a plank Cent. Dig. § 1307; Dec. Dig. § 383.*]

easterly side of a passageway, about 10 feet Appeal from Circuit Court, Multnomah wide, at that end of the can factory, used County; J. B. Cleland, Judge.

by the employés as an entrance thereto. Action by Stella Laury against the North- There were employed by the American Can ern Pacific Terminal Company. Judgment Company, on October 25, 1907, about 50 men for plaintiff, and defendant appeals. Af

and as many women, who ceased working firmed.

on that date at 5:30 p. m., and, after turnThis is an action by Stella Laury against ing in their time checks and obtaining their the Northern Pacific Terminal Company to wraps, they passed out at the easterly end recover damages for a personal injury. The of the factory, thence along the passageway complaint avers, in effect, that the defendant to North Front street, where they found, is a corporation engaged in switching en standing on the spur track, a furniture car, gines and cars in terminal yards controlled the then westerly end of which obstructed by it in Portland; that one of its tracks is a part of the route. A locomotive headed laid along North Front street, a public high-southeast also stood, at that time, on the way in that city; that on October 25, 1907, spur track nearer the switch, but whether while the plaintiff was passing along and or not a coupling had then been made is across such street, the defendant, without disputed. After several of the can comgiving her any warning of the approach of pany's employés had safely passed over the a car, and without having any person in unimpeded portion of the crossing, the encharge thereof, ran it upon her, throwing gine pushed the car back until it entirely her upon and forcing her along the track covered the space occupied by the passageuntil the wheels of the car ran over and way. While the car was thus moving, two crushed one of her lower limbs, thereby dam- young women, Teresa Schoener and Mary aging her in a stated sum. The answer de- Heitzenreter, who worked in the can factory, nies the material allegations of the com- were in the center of the spur track, immeplaint, and avers that the injury of which diately in front of the car, whereupon a the plaintiff complains was entirely due to switchman, standing on the ground, seeing her own carelessness, setting forth the par- them and realizing their imminent danger, ticulars thereof. The reply puts in issue gave a signal with his lantern, causing the the allegations of new matter in the an- engine to be halted. Before the signal was swer, and, the cause having been tried, a given, however, Mrs. Lillie Larmon, anjudgment was rendered against the defend-other employé, in attempting to cross the ant in the sum of $7,500, from which it ap- track, was struck by the car, but her huspeals.

band, noticing her peril, rescued her from

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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