BAILEY, J. On July 1, 1901, the appellee, in an action then commenced against N. J. Stumpf and Frank Myers, caused a writ of attachment to be issued, and certain moneys in the hands of the First National Bank of Cripple Creek, said to belong to defendants in that action, to be garnished. Shortly after the garnishee summons was served, appellant presented to the bank an assignment of account of Stumpf and Myers. The bank refused to acknowledge the assignment because it had been served with a garnishee summons. For some reason the action brought by appellee against Stumpf and Myers was not tried until the 12th day of November, 1902, at which time appellant filed his petition for intervention, claiming that the money had been assigned to him upon the 1st day of July, 1901. Judgment was taken against the defendants by plaintiff, and the writ of attachment sustained. Plaintiff answered the petition of intervention, alleging that the assignment was made by the defendants and accepted by the intervener under the advice of an attorney of defendant and the intervener for the use and benefit of the defendant, and for the purpose of attempting by fraudulent and pretended assignment to defeat the rights of the plaintiff, as well as the lien of the judgment and garnishment, and to obtain money for the use and benefit of defendant, and was not made in good faith. The matter went to the trial court on the plea of intervention and the issue tendered by this defense. The issues were found for plaintiff, and the intervener appealed.

The only question involved in this action is one of fact. It was found by the court adversely to the intervener upon competent testimony, and the judgment must be aflirmed. It appears from the testimony that the defendants in the attachment suit had been arrested and were in the custody of the sheriff. They were desirous of securing some person to sign as surety their appearance bond. They made a check to the intervener for $1,000. This check was to have been delivered to Mr. Burnside upon condition that he would sign the bond. The intervener and his counsel called upon Mr. Burnside, and he refused to sign the bond because he had been informed that the plaintiff was going to attach the money in the bank. Defendants then, upon the advice of their counsel, made the following assignment to the intervener: "Cripple Creek, Colo., June 29, 1901. For and in consideration of the sum of fifty dollars to us in hand paid by George Goode and the furnishing of bond and employing an attorney and other services to be performed by the said George Goode, we hereby sell, assign and transfer to the said George Goode the sum of one thousand dollars now on deposit

Colorado." This assignment was not made until the parties had learned that plaintiff was preparing to attach the money. The intervener did not furnish the bond as required by the assignment, and paid out, in addition to the $50 recited in the assignment, the sum of $100, to the attorney, making à total expenditure of $150 as a consideration for the assignment of $1,000. Under these conditions the trial court was justified in finding the issues for the plaintiff, and the judgment will not be disturbed. It will therefore he affirmed. Affirmed.

STEELE, C. J., and GODDARD, J., concur.

(41 Colo. 201)

WATT v. LEHR. (Supreme Court of Colorado. Oct. 7, 1907.) APPEALS-REVIEW-QUESTIONS OF FACT.

A finding on conflicting evidence will not be reviewed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.]

Appeal from District Court, City and County of Denver; P. L. Palmer, Judge.

Action by George Watt against Mrs. Elizabeth Lehr. Judgment for defendant, and plaintiff appeals. Affirmed.

W. II. Hunt and E. I. Stirman, for appellaut.

GABBERT, J. Appellant, as plaintiff, commenced an action against appellee, as defendant, to recover from her the sum of $100 upon an express contract which he alleged had been entered into by her through her husband as her agent. The contract in question, as set out in the complaint, was to the effect that defendant, through her agent, agreed with the plaintiff that, if he would secure certain property for her at a. sum specified, she would pay him $100 for his services. answer was filed, denying the contract. this issue the finding of the trial court was for the defendant, and plaintiff appeals.

An

On

The testimony bearing on this issue and the collateral questions relevant thereto was conflicting, and, under the established rule of this court, will not be disturbed on review. We shall therefore only refer briefly to the material ultimate fact which the court found in favor of the defendant. Plaintiff did not rely upon a personal contract with defendant, but upon one made by her husband, as her agent. With respect to this contract, it appears that the question was whether the agreement alleged to have been made by the husband embraced a promise on the part of the wife to pay the sum sued for, or whether such promise was made by the husband only for himself. This question, as we have stated, was resolved against the plaintiff on conflicting testimony, or, perhaps more accurate

ly speaking, upon testimony of a character from which the trial court was justified in finding that the promise to pay was on behalf of the husband only. It is urged by counsel for plaintiff that, because the defendant purchased the property, she should be held liable because thereby she ratified the contract of her husband. In view of the finding of the court, that question is not involved. By purchasing the property defendant did not become liable to pay any sum which her husband promised to pay as his obligation alone, and by such finding it necessarily follows that her husband never assumed to make any promise for her to pay the plaintiff for his services. Consequently, there was no contract to ratify.

The judgment of the district court is affirmed.

Judgment affirmed.

STEELE, C. J., and CAMPBELL, J., con

cur.

(41 Colo. 25)

DIMPFEL v. BEAM. (Supreme Court of Colorado. Oct. 7, 1907.) 1. STATUTES-RELATION OF AMENDATORY ACT TO ACT AMEnded.

Where a section in an existing law is amended in the mode prescribed by the Constitution, it ceases to exist, and the section as amended supersedes the original.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 311.]

2. TAXATION-TAX DEED-STATUTES-REPEAL OF SECTION AMENDED.

2 Mills' Ann. St. § 3900, authorizing the issuance of a tax deed to a county upon demand of the county clerk, was superseded by Laws 1893, p. 428. § 1, whereby the right of a county to take a tax deed was taken away, and providing that tax sale certificates be assigned upon conditions specified, and hence, a tax deed, showing on its face that it was made to Hinsdale county several months after the law of 1893 went into effect, was a nullity. 3. SAME-ACTION TO QUIET TITLE-LIMITATIONS-VOID TAX DEED.

Where one holding a tax deed, void on its face, sues to quiet the title, and defendant answers that he is the owner in fee under a conveyance to him from the patentee of the government and seeks to recover on a cross-complaint the value of ore hauled from the premises by the plaintiff, the statute of limitations is no bar to the cross-complaint, since the statute does not apply where a deed is void on its face. 4. SAME-SET-OFF AND COUNTERCLAM.

Where one holds possession under a void

able tax deed, rents and profits may be offset against taxes paid by him.

Appeal from District Court, Gunnison County; Theron Stevens, Judge.

Suit to quiet title by Thomas L. Beam against W. O'Sullivan Dimpfel. From a decree for plaintiff, defendant appeals. Reversed and remanded.

This is an action by appellee, as plaintiff, to remove a cloud from the title to the Bourbon County lode mining claim situate in Insdale county, Colo.; he claiming title thereto through and by virtue of a certain

tax deed. The appellant, defendant below, claims title to the premises under a conveyance from the patentee of the government which vested in him the fee title to the premises. The facts disclosed by the record that are pertinent to the inquiry presented for our consideration, are as follows: The property was subject to taxation for the year 1888, and the taxes assessed thereon for that year remaining due and unpaid on the 31st day of July, 1889, the county treasurer offered the property for sale, and struck the same off to the county for the amount of taxes due thereon. The property being unredeemed from such sale for more than three years. the county treasurer executed a deed to the county on the 10th day of October, 1893, reciting as a consideration therefor the tax of 1888, and the subsequent taxes on said property to the amount of $32.37. On the 15th day of January, 1902, the county commissioners, in their individual names, executed a deed to the appellee for the premises for and in consideration of the sum of $60 by him then and there paid. No taxes were assessed against this property from 1893 until the year 1902. In 1903 the appellant paid this tax, and also the tax for the year 1903. The appellee testified that he went upon the property for the first time about July or August, 1903, and took out and shipped 17,920 pounds of ore. of the value of $21.48 per ton, and gathered up five or six tons more from the surface, and that he had not been on the property since. The appellee attempted in his replication to plead the five-year statute of limitation. Mills' Ann. St. § 3904.

S. S. Sherman and Ben Griffith, for appellant. G. D. Bardwell, for appellee.

GODDARD, J. (after stating the facts as above). The controlling question is whether the tax deed issued to the county is valid, and vested the title to the premises in the county. Upon the trial below, the defendant objected to the introducion of the deed because of its invalidity for several reasons appearing upon its face, among them the want of power in the county to take or receive the same. In the view we take of this particular objection, it becomes unnecessary to consider whether the other objections were well taken or not. By the statute enacted in 1885 (Sess. Laws, p. 323; 2 Mills' Ann. St. § 3900), the issuance of a tax dece to a county was authorized upon demand of he county clerk at any time after three years from the date of sale, and in pursuance of a certificate of purchase for land bid off by the county. This statute was amended by an act approved April 8, 1893, whereby the right of a county to take a tax deed was taken away, and in lieu thereof the county treasurer was authorized to assign the tax sale certificate upon payment of the amount of the tax with the interest and penalties called for by such certificate, or for such sum as the board of county commissioners at any regu

lar meeting may decide. Sess. Laws 1893, p. 428, § 1; 3 Mills' Ann. St. § 3900. Lovelace v. Tabor M. & M. Co., 29 Colo. 62, 66, 66 Pac. 892. "It is firmly settled that where a section in an existing law is amended in the mode prescribed by the Constitution it ceases to exist, and the section as amended supersedes the original." Walsh v. State ex rel. Soules, 142 Ind. 357, 41 N. E. 65, 33 L. R. A. 392. The tax deed shows on its face that it was made to Hinsdale county on the 10th day of October, 1893. The statute, as amended, was in force for several months before this date. The deed therefore was a nullity; the statute having taken away not only the right of the county to receive the deed, but also the power of the county treasurer to make a deed to the county. The deed being void, it follows that the statute of limitations, if well pleaded, would have constituted no bar to the relief the appellant was entitled to under the allegations of his crosscomplaint; it being well settled that the statute of limitations does not apply where the deed is void on its face. Crisman v. Johnson, 23 Colo. 264, 268, 47 Pac. 296, 58 Ám. St. Rep. 224; Gomer v. Chaffee, 6 Colo. 314, 317. As was said in the latter case: "It is difficult to see how the statute of limitations can avail a defendant holding a void deed. There was nothing for the statute to operate upon; nothing for it to run in favor of or against; nothing to set it in motion. The deed was void; it did not give him constructive possession nor the right of actual possession." In the circumstances of this case, the appellee was not justified in entering upon the property and removing the ore therefrom, and the proceeds of the ore taken by him therefrom should be offset to the extent of the taxes paid by him. One holding possession under a voidable tax deed, rents and profits may be offset against taxes paid by him. Longworth v. Johnson et al.. 66 Kan. 193, 71 Pac. 259.

The judgment is reversed, and the cause remanded, with directions to the court below to enter a decree in favor of appellant upon his cross-complaint, declaring null and void the tax deed from the county treasurer of Hinsdale county to said Hinsdale county, and canceling the same of record, and declaring the pretended deed from Hinsdale county to appellee null and void, and canceling the same of record.

Reversed and remanded.

STEELE, C. J., and BAILEY, J., concur.

(41 Colo. 126) CRIPPLE CREEK TUNNEL, TRANSPORTATION & MINING CO v. MARSHALL. (Supreme Court of Colorado. Oct. 7, 1907.) PRINCIPAL AND AGENT EVIDENCE OF AGENCY -WEIGHT AND SUFFICIENCY.

In an action for work and labor performed by plaintiff's intestate and three others, where defendant contended that the agency of

W., who employed them to do the work, had been previously terminated, evidence held sufficient to sustain the finding that the agency of W. had not terminated at the time of the employment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 41.]

Appeal from District Court, Teller County; Louis B. Cunningham, Judge.

Action by Fred Marshall, as administrator for Walter Marshall, deceased, against the Cripple Creek Tunnel, Transportation & Mining Company, to recover for work and labor performed. From a judgment for plaintiff, defendant appeals. Affirmed.

Champion & Blunt, for appellant. C. E. Brady, for appellee.

GODDARD, J. This is an action to recover for work and labor performed by plaintiff's intestate and three others for the appellant, defendant below, in what is known as the "Standard Tunnel," upon the property of the appellant. The services were performed during the months of August, September, and October, A. D. 1898, under an employment by one E. L. White, and consisted in running a drift in said tunnel, and work upon the machinery, track, and other property belonging to the company.

The ground upon which appellant relies to escape liability is that White was not authorized to employ the men in behalf of the company to do this work at the time they were employed, although he was theretofore the authorized and acting representative of the company in the management of its property, claiming that his agency was terminated in the month of February preceding. The evidence as to when his agency terminated is conflicting. Mr. Wallace, the president of the company, testified that in February, 1898, he (White) was discharged by the company. Mr. White testified that he was not discharged at that time, but that he continued to act as agent in the management of, and was in charge of, the company's property, as its agent, during the months aforesaid and until December, 1898. There is evidence tending to corroborate Mr. White's testimony. In these circumstances the finding of the court below must be accepted by us as conclusive upon this controlling question of fact, and its judgment must be affirmed.

Affirmed.

STEELE, C. J., and BAILEY, J., concur.

(41 Colo. 9)

INNES v. BOGAN, GAINES & CO. (Supreme Court of Colorado. Oct. 7, 1907.) BROKERS-COMPENSATION OBTAINING PUR

CHASER.

Where a broker brought a prospective purchaser before the owner of land, and the prospective purchaser, upon being told the price, left without taking any action, the broker was not entitled to a commission, since he had not

furnished a purchaser ready, able, and willing to buy on the seller's terms.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 75-81.]

Appeal from District Court, Mesa County; Theron Stevens, Judge.

Action by Bogan, Gaines & Co. against Joseph Innes. From a judgment for plaintiffs, defendant appeals. Reversed.

S. N. Wheeler, for appellant. Carnahan & Van Hoorebeke, for appellees.

BAILEY, J. The defendant entered into the following agreement with plaintiffs: "I hereby agree to pay Bogan, Gaines & Co., real estate dealers of Grand Junction, Colorado, a commission of 10% if they furnish me a purchaser for my 160 acres located 21⁄2 miles E. of Fruita. The term 'furnish a purchaser' shall include all parties who they refer to me, either through introduction or otherwise, or to whom they show my property. The selling price and terms shall be named by me, and I agree to pay said commission out of the first payment made by their purchaser [Signed] Owner, Joseph Innes." Plaintiffs instituted this action upon the contract, alleging that the defendant named as the selling price for the land the sum of $5,000, and that they found a purchaser, one William Eppert, who was ready, willing, and able to purchase the land at the price named by the defendant. The plaintiffs produced two witnesses; the first being Eppert, the prospective purchaser, who testified, so far as the making of the contract was concerned, as follows: "We met Mr. Innes, according to the agreement, in Grand Junction, at Mr. Gaines' office. Mr. Gaines was present. We went into the office, and I asked Mr. Innes what he would take for the land-what was his best price? He said $1.750 net to him. We did not do anything about it. We got his price and left. I was willing to pay $5,000 for the property." Upon cross-examination he said that he never told Innes that he was willing to buy the place on those terms, and that he never authorized the plaintiffs to make any proposition upon the place whatever. The testimony of Gaines, one of the plaintiffs, so far as it related to the price of the property as named by Innes, was as follows: "I met Innes on the street, and told him that Eppert was ready to buy the place at $5,000. Mr. Innes came into the office, and went back into the room where Mr. Eppert was, and I sat down on the south side of the desk, and Mr. Innes near the door, and I said: 'Now, Mr. Eppert is ready to buy that place, and would like to know your best price.' He says: want $4.750 net to me.' There wasn't very much said. Innes got up and left the room." Upon cross-examination Gaines testified that the only price that Innes fixed was in the office, at $4,750 net to him, and that Eppert did not say that he would take the place at that price; that the witness informed Innes that Eppert would take it at $5,000. In addition

'I

to this the proof shows that, very shortly after the conversation in the office of the plaintiffs, defendant sold the property to a man named Sharp, who subsequently sold it to Eppert; the consideration named in the deed from defendant to Sharp being $5,000.

At the close of plaintiffs' testimony defendant moved that the jury be instructed to return a verdict for the defendant. This motion was overruled, but it should have been granted. Under the terms of the contract the defendant had the right to name the price for which the land was to be sold. The only price that he named was $4,750 net to him, and the proposed purchaser was not willing to take it at that price. There is nothing in the contract prohibiting the defendant from selling the property himself. There is no testimony showing any collusion or fraud between Sharp and the defendant. Before the plaintiffs could be entitled to a judgment, it was necessary for them to furnish a purchaser who was ready, able, and willing to buy on the terms of the seller. Having failed to do that, the court should have directed a verdict. The following authorities support the foregoing proposition: Mechem on Agency, 967; Wylie v. Marine Natl. Bank, 61 N. Y. 416; Hanrahan v. Ulrich, 107 Ill. App. 626; Kilham v. Wilson, 112 Fed. 565, 50 C. C. A. 454; Brown v. Keegan, 32 Colo. 463, 76 Pac. 1056; Colburn v. Seymour, 32 Colo. 430, 76 Pac. 1058; and many authorities cited in the foregoing.

For the reasons above stated, the judgment of the district court will be reversed. Reversed.

STEELE, C. J., and GODDARD, J., concur.

(41 Colo. 65) YOUNG et al. v. PLATTNER IMPLEMENT CO.

YO (Supreme Court of Colorado. Oct. 7, 1907.)

1. CORPORATIONS CORPORATE EXISTENCE DENIAL-ESTOPPEL.

Where defendants signed a note, sued on, reciting that the payee was a duly organized corporation, defendants were estopped to deny the corporation's legal existence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 84-90.]

2. SALES-IMPLIED WARRANTY - KNOWLEDGE OF FITNESS.

The rule that, where a seller contracts to supply an article to be applied to a particular purpose, the buyer trusting the dealer's judg ment or skill, there is an implied warranty of fitness, does not apply where the purchaser has equal means of knowledge with the seller as to the fitness of the thing sold for the purpose intended, or where the seller informs the buyer that he has no personal knowledge of the article purchased.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 762-764.j

Appeal from County Court, City and County of Denver; Albert S. Frost, Judge.

Action by the Plattner Implement Company against John S. Young and another.

Thomas W. Lipscomb, for for appellants. Brown, De Lappe & Sackman, for appellee.

MAXWELL, J. This appeal is from a judgment of the county court, rendered upon an appeal from a justice court. The suit was to recover the amount of a promissory note given by appellants to appellee in payment of a farming implement. At the close of plaintiff's evidence defendants moved a nonsuit, which was denied. This ruling is assigned as error. The abstract of record does not embody this motion, so that we are unadvised as to the grounds upon which it was based, except as we gather the same from appellant's brief, from which it seems that it was upon the ground that the incorporation of plaintiff had not been proved. The note sued upon was introduced in evidence, which recited "The Plattner Implement Company, a corporation duly organized under the laws of Colorado," as payee. A witness testified that he was an officer of the Plattner Implement Company and saw the defendants sign the note. If the court erred in overruling the motion for a nonsuit, based upon the failure of the evidence to establish plaintiff's cause of action, which we do not decide, such error cannot avail appellants upon this appeal, for the reason that both appellants testified to the execution of the note, which recites that it was payable to "the Plattner Implement Company, a corporation duly organized under the laws of Colorado." Horn v. Reitler, 15 Colo. 316, 25 Pac. 501; D. & R. G. Ry. Co. v. Henderson, 10 Colo. 1, 13 Pac. 910; Weil v. Nevitt, 18 Colo. 10, 31 Pac. 487. The case, therefore, falls within the rule that defendants, having dealt with plaintiff in its corporate capacity, are estopped from denying its legal existence. Holmes F. & F. Co. v. Com. Nat. Bank, 23 Colo. 210, 47 Pac. 289, and cases cited.

The defense was the failure of consideration, in that there was a breach of warranty of the implement sold, for which the note was given. The abstract of the record contains no evidence of an express warranty. The rule of implied warranty relied upon is: "It is believed that the weight of authority sustains the rule that where a dealer contracts to supply an article in which he deals, to be applied to a particular purpose, so that the buyer trusts to the judgment or skill of the dealer, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied." 15 A. & E. Ency. (2d Ed.) 1235. In the same paragraph of the citation, at page 1236, an exception is thus stated: "This rule, of course, does not extend to cases where the purchaser and the seller have equal means or knowledge as to the fitness of the thing sold for the purpose for which it is sold, or where the dealer informs the buyer that he has no personal

is ample evidence in the record to warrant the court in finding that the case came within the exception.

Perceiving no error in the record, the judgment will be affirmed. Affirmed.

The CHIEF JUSTICE and CASWELL, J., concur.

(41 Colo. 164)

DENVER LIVE STOCK COMMISSION CO. v. PARKS. (Supreme Court of Colorado. Oct. 7, 1907.) 1. REPLEVIN-DEMAND-TIME.

In replevin, a demand, made after the beginning of the action, but prior to the execution of the writ, is sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Replevin, §§ 83-85.]

2. SAME NECESSITY FOR DEMAND WHEN DEFENDANT CLAIMS OWNERSHIP.

In replevin, no proof of demand is necessary where the defendant claims ownership and right of possession.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Replevin, § 88.]

3. JUSTICES OF THE PEACE-APPEAL—I'RESERVATION OF OBJECTIONS.

In replevin, where defendant gives a redelivery bond, procures a change of venue, and contests the case on its merits before the justice of the peace, he cannot urge want of demand for the first time in the county court on appeal. [Ed. Note. For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 513.]

Appeal from Larimer County Court; J. Mack Mills, Judge.

Action by the Denver Live Stock CommisFrom sion Company against Cash Parks.

a judgment for defendant in the county court on appeal from a justice court, plaintiff appeals. Reversed and remanded.

This is an action in replevin commenced before a justice of the peace, and involves the right to the possession of a span of mules and a set of harness under the provisions of a chattel mortgage given to secure a promissory note executed by the appellee, defendant below. The note was due and payable on April 1, 1903. The action was commenced on the 22d of April, 1903, and a writ of replevin issued. On April 23d demand for possession of the property was made on appellee. The demand was refused, whereupon the writ was served and possession of the property taken by the constable. On April 24, 1903, a redelivery bond was approved, and the property redelivered to appellee. On motion of appellee for change of venue, the cause was transferred to Hiram R. Smith, another justice of the peace, before whom the cause was tried on its merits to a jury, and verdict rendered in favor of appellee "that he was entitled to the property," and judgment was entered accordingly. From this judgment ap pellant appealed to the county court. March 3, 1904, a trial was had in the county court to a jury. The appellant, after prov

)