so intended by the parties, and, therefore, it might sue upon it; the defendant insisting that the bond was given primarily and directly for the benefit of the school board, and, while its performance may have incidentally been of benefit to the plaintiff, such was not its primary object according to the intention of the parties. The rule in this state, as laid down in Lehow v. Simonton, 3 Colo. 346, Green v. Richardson, 4 Colo. 584, and Green v. Morrison, 5 Colo. 18, is that a third party, for whose benefit a simple contract has been entered into for a valuable consideration moving from the promisee, may maintain an action upon it in his own name. The authorities are not entirely in accord as to whether a bond like this is made for the benefit of third parties, in the sense that they might maintain an action upon it. We are, however, under the facts of this case, relieved of the necessity of determining this important question. We are bound to assume the fact to be, as defendant asserts, that the plaintiff did not rely upon this bond in furnishing the brick to Smith, that it did not know of its existence until it brought this action, and that it never accepted the same while the bond was binding between the parties thereto. It is also true that, while we have approved of the acts of public corporations in thus attempting to protect those who do work upon and furnish materials for a public building (Denver v. Hindry [Colo. Sup.] 90 Pac. 1028), yet they are not under any legal obligation so to do. Neither is there a claim here that the board was under any legal liability to plaintiff when this bond was executed.

The general rule seems to be that, under such a state of facts, a third person for whose benefit a contract has been made cannot maintain an action upon it if, before he accepts the same, the parties thereto have rescinded, annulled, or canceled it. 9 Cyc. 386, and authorities cited. A leading case is Gilbert v. Sanderson, 56 Iowa, 349, 9 N. W. 293, 41 Am. Rep. 103. Seevers, J., after observing that under the contract there before the court the plaintiff may have been entitled to its benefits, said: "Now, before he had knowledge any such contract was in existence, the parties who made it agreed upon a valuable consideration to release the obligation thereby assumed. Having the power to enter into such contract, it would seem to follow they could enter into another whereby the former ceased to be of any force or effect, unless in the meantime the person for whose benefit it was made in some manner has indicated he accepts the contract, or it can be implied he did so. By so doing he acquires the rights and assumes the burdens incident thereto." In Simson v. Brown, 68 N. Y. 355, it was held that a bond and guaranty were discharged by the obligee releasing the same and consenting to a cancellation before the person whom it was intended to secure had

acquired rights thereunder. In Jones v. Higgins, 80 Ky. 409, the court said that the parties to such an instrument had the undoubted right to change or abandon the contract before its acceptance by the third party for whose benefit it was made. In Trimble v. Strother, 25 Ohio St. 378, the court held that where the intention is to benefit a third party by a contract, "if he has not been induced to alter his position by relying in good faith on the promise made in his favor," the promisor thereunder is not estopped from setting up against the beneficiary any defense which he could have set up against the enforcement of the promise by the other contracting party. Davis v. Calloway, 30 Ind. 112, 95 Am. Dec. 671, held that, until acceptance by the party intended to be benefited, the parties to the contract might rescind it. See, also, Jefferson v. Asch, 53 Minn. 446, 55 N. W. 604, 39 Am. St. Rep. 618, 25 L. R. A. 257 (notes 10, 11, 12, 13, pp. 265, 266, of 25 L. R. A.).

In the case at bar, not only is there no evidence that the plaintiff relied upon this bond or accepted it, or in good faith acted as he did because it was given, but we know from the records of this court (Keefe Mfg. & Inv. Co. v. School District, 33 Colo. 513, 81 Pac. 257) that it unsuccessfully tried to get a judgment against the school district for the balance which Smith owed to plaintiff under this contract. Our conclusion in this case, however, is not based upon this attempt by plaintiff to secure his claim from the district. Applying the principle of the foregoing authorities to this case, we say that, if the bond on which the defendant was surety was given for plaintiff's benefit, the plaintiff, in acquiring rights thereunder, assumed its burdens and restrictions. This bond expressly provided that it should be annulled upon the acceptance of the building by the school board. The board was not legally or equitably liable to plaintiff for this or any other claim. In good faith it accepted the building before the plaintiff knew of the existence of the bond, or made any claim thereunder, or relied upon it. Thereby the bond became functus officio as to the obligee. Plaintiff, not having then in any way indicated its acceptance of the bond, could not thereafter enforce it.

The judgment of the county court in favor of the plaintiff must therefore be reversed. Reversed

STEELE, C. J., and GABBERT, J., concur.

(40 Colo. 340) MACKENZIE v. PORTER (two cases). (Supreme Court of Colorado. July 1, 1907. Rehearing Denied Oct. 7, 1907.)

1. ACTION-JOINDER OF CAUSES OF ACTIONRENT AND UNLAWFUL DETAINER.

The action of unlawful detainer is not a common-law action, and, in the absence of statutory provisions therefor, a demand for damages

or rent cannot be joined in an action for possession of the premises.

Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Action, §§ 469-479.1

2. JUDGMENT-RES JUDICATA.

Mills' Ann. St. § 1973, provides that any person shall be deemed guilty of an unlawful detention of real property (paragraph 3) when any tenant shall hold over after the expiration of the term, etc. Section 1984 provides for the recovery of rent in an action under paragraph 4 of section 1973, but in no other class of cases. Section 1995 provides for the recovery in a separate action of treble damages for any injuries sustained by the plaintiff while deprived of possession. Section 2644 provides that in all suits before a justice each party shall bring forward all demands existing at the commencement of the suit which can be consolidated into one action or defense, and, on neglecting so to do, shall be debarred from suing for any debt or demand. Held, that the failure of a landlord to join in a suit for possession of the premises a demand for the rent did not debar him from recovering for rent accruing prior to the commencement of the suit for possession. 3. JUSTICES OF THE PEACE-ACTIONS-UNITING DIFFERENT CAUSES.

An action by a landlord against a tenant to recover rent accruing from the termination of the tenancy to the time of the commencement of an action for possession of the premises cannot be united in a justice or county court with an action against the tenant and his sureties on an undertaking on appeal to the county court from the judgment of possession to recover damages for withholding possession of the premises pending the appeal.

Appeal from County Court, City and County of Denver; Ben B. Lindsey, Judge.

Two separate actions by Henry M. Porter against A. MacKenzie consolidated by consent, and, from judgment for plaintiff in each case, defendant appeals. Affirmed.

John T. Bottom, for appellant. Benedict & Phelps, for appellee.

MAXWELL, J. By stipulation two causes have been consolidated in this court. Appellant and appellee sustained the relation of tenant and landlord, respectively. The teuant held over after service of statutory notice terminating the tenancy. The landlord had judgment for possession of the premises, in a justice court, in an action brought under paragraph 3, § 1973, Mills' Ann. St., which is: "Any person shall be deemed and held guilty of an unlawful detention of real property in the following cases.

* (83)

When any lessee, or tenant, at will, or by sufferance or for any part of a year, or for one or more years, of any real property, including a specific or undivided portion of a building, or dwelling, shall hold over, and continue in possession of, the demised premises, or any portion thereof, after the expiration of the term for which the same were leased, or after such tenancy, at will or sufferance, has been terminated by either party." An attempt was made by the tenant to perfect an appeal from this judgment to the county court, which proved unsuccessful by reason of a defect in the statutory additional undertaking required. The appeal was dismissed in

the county court on the motion of the landlord, and the tenant vacated the premises. Thereafter the landlord commenced two suits in a justice court, one against the tenant to recover three months' rent of the premises covering the period from the date of the termination of the tenancy to the date when the action for possession was commenced. the other against the tenant and his sureties on the additional undertaking on appeal to the county court to recover damages for withholding possession of the premises pending the appeal to the county court from the judgment for possession. In the first case judgment went for the landlord against the tenant for the amount of the demand. the second the justice dismissed as to the sureties, and gave judgment against the tenant for 12 months' rent, the period of time which elapsed between the rendition of the judgment for possession in the justice court and the dismissal of the appeal in the county court. From these judgments the tenant appealed to the county court, where the appeals were consolidated, and a trial to the court without a jury, upon an agreed statement of facts, resulted in judgments against the tenant, to reverse which these appeals were prosecuted to the Court of Appeals.

The tenant insists that the landlord is barred from recovering any judgment against him for rent which had accrued prior to the commencement of the original suit for possession, as he did not join in such suit a demand for the rent, by reason of section 2644. Mills' Ann. St., which provides: "In all suits which shall be commenced before a jus tice of the peace, each party shall bring forward all his or her demands against the other, existing at the time of commencing the suit, which are of such a nature as to be consolidated into one action or defense, and on refusing or neglecting to do the same, shall forever be debarred from the privilege of suing for any debt or demand." The action of unlawful detainer is not a common-law action, but is purely statutory, and, in the absence of statutory provisions therefor, demand for damages or rent cannot be joined in an action for possession of the premises. Shunick v. Thompson, 25 Ill. App. 619; Ow v. Wickham, 38 Kan. 225, 16 Pac. 335. Under our statute (section 1984, Mills' Ann. St.) provision is made for the recovery of rent in an action commenced under paragraph 4 of section 1973, but in no other class of cases. The action here involved was under paragraph 3 of section 1973. Section 1995. Mills' Ann. St., provides for the recovery, in a separate action, of treble damages for any damages or injuries sustained by the plaintiff during the time he shall have been deprived of the possession of the premises. Under the above provisions of the statute the position of the tenant upon this proposition is untenable.

The tenant also contends that, as to the judgment rendered against him on the defective appeal bond, the landlord is estopped to maintain suit thereon for the reason that he, the landlord, brought about a decision to the effect that the bond was void. An inspection of the bond upon which the judgment was rendered leads to the conclusion that the court erred in dismissing as to the sureties thereon, The landlord is not complaining of this error, and the tenant is in no position to do so. If we assume that the bond was defective as a statutory bond to effect the purpose for which it was intended, to wit, to perfect an appeal from the judgment for possession, it certainly was valid as against both principal and sureties as a voluntary common-law bond entered into for a sufficient consideration. Smith v. Stubbs, 16 Colo. App. 130, 63 Pac. 955; Swofford Bros. D. G. Co. v. Livingstone, 16 Colo. App. 257, 65 Pac. 413. This contention of appellant is also without merit. The two causes of action upon which judgments were rendered below, here consolidated, were separate and distinct and against different parties in different interests. They could not have been united in a justice court nor in the county court.

There is no error of which appellant can complain in the record of either cause, for which reason the two judgments will be affirmed.

Affirmed.

The CHIEF JUSTICE and CASWELL, J., concurring.

(41 Colo. 77)

CITY OF DENVER v. DENVER UNION WATER CO.

(Supreme Court of Colorado. July 1, 1907. Rehearing Denied Oct. 7, 1907.)

1. WRIT OF ERROR-REVIEW - RULINGS ON PLEADINGS-DISCRETION.

Rulings on motions directed to the pleadings in the trial court are largely within the court's judicial discretion, and will not be interfered with on a writ of error, unless it clearly appears from the record that such discretion has been abused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3825.]

2. SAME-RECORD-PREPARATION-Briefs.

Where rulings on motions with reference to pleadings are relied on for reversal, the precise language to which the motions are addressed should be called to the attention of the Supreme Court by quoting the same in the briefs. 3. SAME FINDINGS OF FACT-REVIEW.

Where findings of fact and a decree are based on either conflicting or undisputed evidence, and there is substantial evidence to support them, they will not be disturbed by the Supreme Court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3983-3989.]

4. WATERS-MUNICIPAL SUPPLY-RATES-DE

vided that after five years the city council might require the company to fix schedule rates for private consumers equivalent to an average rate prevailing in certain other cities for the same service, and in a suit to establish such rate it was found impossible to determine the average rate prevailing in such cities for the same service, because the charges in each were fixed on an entirely different basis, a decree attempting to fix a schedule according to such average, in which more than two-thirds of the rates established were not based on any mathematical computation with reference to the rates charged in such cities, but were the same as previously charged by the water company in 1895, was

erroneous.

5. SAME-ISSUES.

Where a suit was brought against a water company to establish a new schedule of rates under a franchise authorizing the city council to require the company to fix schedule rates for private consumers equivalent to the average rate prevailing in certain cities for the same service, and it was charged that the schedule fixed by the company was not the average rate prevailing for the same service in such cities, on which issue was joined, a determination of rates, not based on the average rate charged in the cities in question, "to determine a fair, just, and reasonable rate," was erroneous, as not within the issues.

6. SAME-FRANCHISE PROVISIONS-ENFORCE

MENT.

Where the schedule of water rates prevailing in certain cities was based on such radically different classification and methods of computation and such a diversity of uses and services, etc., that it was practically impossible to ascertain an average schedule of rates in the three cities for the same service, the provision in a water company's franchise authorizing the city to require the company to fix schedule rates for private consumers equivalent to the average charge prevailing in such cities for the same service was invalid.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 292.] 7. SAME-CONTRACT FOR SERVICE-OUTLYING DISTRICTS-INCORPORATION IN CITY.

Where a water company's franchise fixed the rates for service, and an ordinance conferred on the company the privilege of laying mains in the streets, avenues, alleys, and public places of the city "and additions thereto," independent contracts to furnish water to consumers in districts outside the city at different rates were neither abrogated nor affected by the subsequent incorporation of such districts within the city limits.

8. SAME-PRESSURE.

A water company's franchise required a pressure of 115 pounds at a specified hydrant. With the city's consent the system was changed from a pumping to a gravity system, which resulted in largely increasing the water supply. but reduced the pressure at the ruling hydrant to 85 pounds. It was proved that the present system furnished abundant and much greater water supply. which would be equivalent to a pressure of 115 pounds at the ruling hydrant in cases of fire, and that the city's officers had declined to permit a return to the pumping system. Held, that the company had not violated its franchise by permitting the pressure to decrease at the ruling hydrant.

En Banc. Error to District Court, Arapahoe County; Owen E. Le Fevre, Judge.

Suit by the city of Denver against the Denver Union Water Company. From a decree in favor of defendant, plaintiff brings error. Affirmed in part, and reversed in part.

ant in error.

MAXWELL, J. April 10, 1890, the city council of the city of Denver passed an ordinance, know as "Ordinance No. 44, Series of 1890," the title of which is: "A bill for an ordinance continuing and extending the franchise and privileges of the Denver Water Company and making a contract with such company for the supply of water for public and private purposes." It is not necessary to set out this ordinance at length in this opinion. It is sufficient to say that in its general provisions it is similar to ordinances of like character granting to the company, its successors and assigns, the right to lay and maintain its pipes in the streets, avenues, alleys, and public places of the city for the purpose of supplying the city and its inhabitants with water for municipal and domestic uses for the term of 20 years from its date. The sections of the ordinance pertinent to the matters involved in this controversy are as follows:

"Sec. 5. The rate to private consumers for water shall not be greater than now charged by the said the Denver Water Company, a schedule of which rates is hereto annexed, marked 'Schedule A,' and the said the Denver Water Company may require any consumer to furnish a meter and pay for water by meter measurement; provided, however, that at any time after five years from date the city council may require said company to fix schedule rates for private consumers equivalent to the average rate prevailing in the cities of Chicago, St. Louis and Cincinnati, for the same service.

"Sec. 6. The said the Denver Water Company shall at all times furnish water to the city and to private consumers of a quality as good and fit for private consumption as that shown by the analysis made by order of the city of Denver by Prof. Joseph A. Sewall, in the month of August, 1889."

"Sec. 8. The said company shall at all times until the 1st day of May, 1891, keep and supply the said hydrants with an abundant supply of water for fire purposes under such pressure as it now gives; and after said 1st day of May, 1891, shall supply all of said hydrants and any hydrant which may be ordered to be set upon additional mains, as hereinafter in this ordinance mentioned, with a pressure equivalent, taking the elevation of the surface of the ground into account, to one hundred and fifteen pounds at the hydrant in front of the Union Depot in said city provided, the city shall not be in default with the company upon any of its agreements, and provided, further, that if, owing to the extension and growth of the city, hydrants shall be ordered upon locations where,

shall be less than forty-five pounds pressure, with a pressure of one hundred and fifteen pounds at the hydrant in front of the Union Depot, to the number of fifty or more, the said company shall put such hydrants upon a separate high service, and keep and maintain on each of said hydrants a water pressure of not less than fifty pounds."

Attached to this ordinance is a schedule of water rates, designated as "Schedule A." This ordinance was accepted by the company in writing, and thereby became a contract between the city of Denver and the water company, its successors and assigns. The Denver Union Water Company, defendant in error here, became the owner of the property and franchises of the Denver Water Company some time during the year 1894, and is the successor of the Denver Water Company under the terms of the ordinance, charged with all of the duties and liabilities imposed by the ordinance, and entitled to all the rights and benefits thereby granted.

October 2, 1895, the city council of the city of Denver passed a resolution requiring the Denver Union Water Company to fix a schedule of rates for private consumers of water in the city of Denver equivalent to the average rate prevailing in the cities of Chicago, St. Louis, and Cincinnati for the same service, in accordance with the provisions of section 5 of the ordinance hereinbefore quoted. Intervening the last above date and November 1, 1895, the date upon which the semiannual water rates for the ensuing six months became due, the water company issued a schedule of rates which was entitled: "The Denver Union Water Company's Schedule of Semiannual Rates, Payable in Advance on the First Days of May and November for Each Year at the Office of the Company, 501 17th Street, Corner of Glenarm Street. To Take Effect November 1, 1895." This schedule of rates will be hereafter referred to as the "leaflet schedule." April 29, 1897, the city council of the city of Denver passed an ordinance in which it was declared that the rates charged by the Denver Union Water Company to private consumers of water are not, and had not been since October 2, 1895, nor since April 10, 1895, equivalent to the average rates prevailing in the cities of Chicago, St. Louis, and Cincinnati to private consumers of water for the same service, and required the company, on or before 10 days after the date of the passage of the ordinance and the service of a copy thereof upon the company, to comply with the terms of the resolution of the city council passed October 2, 1895. A certified copy of this ordinance was served upon the company shortly after the passage thereof and before the commencement of this suit.

May 21, 1897, a complaint was filed in the district court of Arapahoe county by the city of Denver as plaintiff against the Den

ver Union Water Company as defendant. This complaint in effect alleged that the water company had failed and refused to comply with the requirements of section 5 of the ordinance above quoted, relating to the fixing of a schedule of rates as therein specified. It further alleged that the defendant had violated section 6 of the ordinance, in that the water which it had furnished was impure and unwholesome for domestic uses, and also that there had been a failure upon the part of defendant to supply the pressure required by the provisions of section 8 of the ordinance. The prayer of this complaint was for an order of the court directing the defendant to establish a schedule of rates equivalent to the average rate prevailing in the cities of Chicago, St. Louis, and Cincinnati for the same service, and that such schedule of rates, when so prepared by the defendant, should be submitted to the court and by its decree made the schedule of rates for private consumers of the city; that the court should fix a schedule of rates for private consumers equivalent to the average rate prevailing in the cities of Chicago, St. Louis, and Cincinnati for the same service; that the defendant by order of the court be required to furnish the quality of water and the pressure required by the ordinance; for a preliminary injunction restraining the defendant from collecting any water rates from private consumers of water until the rates had been fixed and determined by the court, pursuant to section 5 of the ordinance of 1890; for an order compelling the defendant to allow a rebate on all rates by it collected since April 10, 1895, in excess of the rates allowed by section 5 of the ordinance of 1890; and for general relief. This statement of the relief prayed by the plaintiff is here made upon the theory that the prayer of the complaint or bill in equity, in general, indicates the nature of the bill and the character of the relief sought by the pleader, and for the purpose of indicating at the outset of this discussion the objects which were sought to be attained by the plaintiff by and through this proceeding.

After the service of summons, but before the appearance of the defendant, an amended complaint was filed by the plaintiff June 19, 1897. The substance of this amended complaint was in effect the same as the original complaint, with much elaboration, however. The amended complaint embodied in detail Schedule A, which was the schedule of water rates attached to the original ordinance of 1890, and referred to in section 5 of said ordinance, and in a parallel column set forth a schedule of water rates which was alleged to be the equivalent of the average rate prevailing in the three cities named in th ordinance for about three-fourths of the items contained in Schedule A, or such items as it at that time seemed possible for plaintiff to give the average of. The allegations of this amended complaint as to the failure of de

fendant to comply with the requirements of sections 6 and 8 of the ordinance were much elaborated, but in effect the same as those of the complaint. The prayer of this amended complaint was substantially that of the original complaint. A motion to strike certain allegations of the amended complaint and a motion to make the same more specific were interposed by defendant to the amended complaint. In the main these motions were ruled by the court in favor of the defendant. The rulings of the court upon these motions adverse to the plaintiff have been assigned as errors, and will be hereafter considered and disposed of.

As a result of the ruling of the court upon the motion to make more specific, plaintiff filed a second amended complaint October 15, 1897, which in substance was the same as the original and amended complaints, differing, however, from those pleadings, inter alia, in this: that pursuant to the order of the court there was embodied in this complaint a table of rates in parallel columns, alleged by plaintiff to contain the schedules of rates prevailing in the cities of Chicago, St. Louis, and Cincinnati for private consumers for the same service or character of service, provided for by Schedule A, an average of the three cities named, "Schedule A," and the schedule of rates promulgated by the company previous to November 1, 1895, known as the leaflet rates." This table of rates, comprising the six schedules above enumerated, was denominated a "comparative table." It is noticeable that the average rate of the three cities as given in this comparative table differs very materially from the average rate of the three cities set forth in the complaint and the amended complaint. The prayer of this second amended complaint was substantially the same as that contained in the complaint and amended complaint. Upon motion of defendant, and pursuant to an order of court, plaintiff was required to plead in their entirety the ordinances of the cities of Chicago, St. Louis, and Cincinnati which established water rates for private consumers in those three cities. This was done by filing an amendment to the second amended complaint.

At this stage of the proceedings counsel for the defendant took the position that the second amended complaint stated three causes of action, based upon alleged violations of the contract by the defendant, relating to its. failure to establish a schedule of rates as required by section 5, its failure to provide the quality of water required by section 6. and its failure to supply the city with the pressure required by section 8. This view of the controversy seems to have been concurred in by the court below. The order of the court upon this motion of defendant is not set forth in the abstract of the record, but the result contended for by defendant seems to have been accomplished by an order October 18, 1897, requiring defendant to an