further admit that it was a kind of accord which did not, unless satisfied, bar a right of action. upon the original contract. In our judgment the failure to render the accord a full satisfaction was the fault of McIntyre and not of Cary. McIntyre was bound to deliver the 150,000 feet of lumber within 60 days from May 25th; this was an important and material feature of the accord agreement; the evidence without conflict or contradiction shows that at the expiration of the time there remained 42,000 feet undelivered. Cary was not responsible for this failure to comply with the agreement, and was in a position to decline further proceeding thereunder. It is claimed that he was first in default by refusing to accept a few loads and parts of loads, rejected in June. McIntyre's theory is that since the May agreement did not expressly provide for good and merchantable lumber, or such lumber as Cary wanted, the latter was bound to accept anything tendered; he says in testifying, “I told Mr. Cary, you will have to take just what I give you." But we submit this is neither a fair nor a legal interpretation of the contract. If it is, McIntyre might have delivered old and injured lumber, for there are no express words requiring it to be new or sound; he might have compelled Cary to take and pay for lumber which was worthless and unsaleable at any price. This accord agreement must be construed in the light of the October contract, the business of Cary and all other circumstances attending the making thereof. Giving it a reasonable construction, we think the lumber was to be of good quality. Cary says he refused the loads or parts of loads because they were not "merchantable;" there is evidence to show that by the word "merchantable" he did not refer to the quality, but to the kind of lumber. He says that under the compromise agreement McIntyre was to deliver the kind he wanted; and Cary further says, "He (McIntyre) told me if I did not want certain kinds to say so and they would be taken down to his yard." The only denial of this last statement by McIntyre is in the language already quoted; but notwithstanding that expression, McIntyre retained the rejected lumber, and went on delivering under the contract; he seemed to have thought no more about it until the institution of this suit some time afterwards. A condition of an accord agreement, like that of any other contract, may be waived by the parties thereto. Under the circumstances, if Cary was bound by the contract to receive the lumber rejected, there was a waiver of this obligation to the extent at least, of preventing McIntyre from recinding the agreement and declaring it a nullity; he could only recover, if at all, for the loss occasioned by Cary's refusal to accept the rejected lumber. McIntyre vs. Barnes, 4 Colo. 289. We do not agree with counsel for appellee that these are all questions of fact, and that they were properly submitted to and passed upon by the jury. The fact that the May writing was not signed by Cary does not interfere with the mutuality or binding effect upon both parties of the accord agreement. There was no understanding that it should be signed, or even reduced to writing, before it took effect; there was ample consideration for it on both sides; Cary obtained a reduction in the purchase price per thousand, while McIntyre secured a guarantor for the payment of the price agreed upon, and. acquired the privilege denied in the October contract, of selling to other parties. Cary retained the May proposition or agreement, and notified McIntyre, by agent, of his satisfaction therewith and acceptance thereof; he acted during the succeeding sixty days under the same, receiving the lumber as delivered and paying the $26 per thousand as stipulated in the agreement. The form of the instrument and the language used, make it doubtful if there was any thought that Cary should sign it; it is more like a proposition, which when acted upon became binding upon both parties; the writing simply being evidence of the terms of the contract between them. Under the evidence appellee was not in a position to maintain his action. upon the October agreement. The judgment must be reversed and the cause remanded. Reversed and remanded. [No. 842.] THE D. & R. G. RY. Co., Plaintiff in Error, vs. ORAN GOTIS, et al, Error to County Court of Chaffee County. L. K. Bass and John M. Waldron for plaintiffs in error. Opinion Filed February 15, 1884. D., W. & P. Ry. Co., p. 60 ante, reaffirmed.-This case is decided upon the case of the D., W. & P. Ry. Co. vs. Church ante., p. 60. STONE, J.-This was a proceeding instituted by plaintiff in error, in the county court of Chaffee County, for the condemnation of certain lands of the defendants in error for right of way for the railway of the plaintiff company. Several defects in the proceedings are alleged by plaintiff, which, if properly before us, might probably be considered grounds of error sufficient to reverse the case, but since these matters were presented by a bill of exceptions, which for not having been prayed and allowed in due time, was, on motion in this court, stricken from the record, the matters thus brought up are not now before us for review. There remains, therefore, for our consideration, but one important ground of error, and that is a jurisdictional one. The commissioners appointed by the court to ascertain and report the value of the lands taken for the said right of way, returned into court, as such ascertainment and finding, that the value of the lands so taken was $1,500; that the damage to the residue of the lands of defendants, not taken, was $2,500, and that the benefits to the land not taken were nothing, and hence the amount of the award altogether was the sum of $4,000. Upon this award a rule was entered by the court for the right of way upon payment of said sum awarded. Counsel for defendants, conceiving the amount of this award to be the only question properly before this court, have devoted their argument and brief filed herein, solely to support of the jurisdiction of the court below in entering judgment on the award, but we consider it unnecessary to discuss the question here, inasmuch as we have recently passed upon the precise question, in the case of the Denver, Western & Pacific R. R. Co. vs. Church, decided at the present term. In that case we held that the jurisdiction of county courts as to amount being limited to the sum of $2,000, such courts were without jurisdiction to proceed further in such case where the amount of the award was in excess of $2,000. The judgment is reversed, and the cause remanded with directions to the court below to dismiss the proceedings. However, for the reasons given in the opinion in the case of the D., W, & P. R. R. vs. Church, supra, the plaintiff in error will be adjudged to pay the costs. Reversed. [No. 859.] THE PEOPLE, &c., ex. rel. DEAN vs. THE COMMISSIONERS OF GRAND COUNTY. L. B. France for relator. R. S. Morrison for respondent. Opinion Filed January 18, 1884. Removal of County Seat.-The act of 1876 requiring a vote of two-thirds of the legal voters in favor of the removal of a County Seat, in order to effect a removal, does not affect this case. Upon a careful investigation of the vote cast, it is held that Grand Lake received a majority of all the votes cast, and it is declared to be the County Seat of Grand County. STONE, J.-This is an original proceeding brought to this court by mandamus,. for the purpose of testing the validity of the acts of the board of county commissioners of Grand county in declaring the County Seat of that county removed from Hot Sulphur Springs to Grand Lake, as the result of an election. held for that purpose in the fall of 1880, and in removing the public records, offices and business to Grand Lake, as the lawful County Seat. In the opinion rendered by this court, when the case was formerly before us (6 Colo. Rep. 202), we directed the issues of facts to be tried in the court below, and that the verdict of the jury, or the finding of the court therein, to be returned to this court showing, first, what number of votes was cast by the qualified voters of Grand county at the general election held in that county on the 2d day of November, 1880, on the question of the removal of the County Seat of said county, and, second, of the number of votes so cast, what number of legal votes was for Hot Sulphur Springs, and what number for Grand Lake, for County Seat. In accordance with said order, the record before us presents the proceedings and evidence in the trial of said issue, and the court returns its finding as follows, to-wit: "And now on this 18th day of August, A. D. 1882, this cause heretofore at the present term of the court having been submitted to the court upon the evidence and arguments of counsel in said case, and the court being fully advised in the premises, and a jury having been waived by the parties hereto, the court now finds that the number of votes cast by the qualified voters of Grand county at the general election held in said county on the second day of November, A. D. 1880, on the question of the removal of the County Seat of Grand county was one hundred and sixty four, and of the number of votes so cast, the number of legal votes cast for Hot Sulphur Springs for County Seat was seventyone (71), and the number of legal votes cast for Grand Lake for County Seat was ninety-three (93.) "[SEAL.] "By the Court, CHESTER C. CARPENTER, "Judge." Counsel for the relator, in his argument filed herein, claims that this finding is erroneous, for the reasons that, first, admitting that the election returns show prima facie, that Grand Lake received 101 votes, Grand Lake, west side, 13 votes, and Hot Sulphur Springs 83 votes, yet rejeeting the 13 votes cast for Grand Lake, west side, as having been cast for a separate point of location, and then also rejecting the 20 votes cast at Teller precinct, and 27 votes cast at Lulu precinct, amounting to 47 votes cast for Grand Lake, as illegal on the ground of noncompliance with the registry law, and it would leave but 54 votes for Grand Lake as against 83 for Hot Sulphur Springs; second, that the testimony shows that several votes cast at Grand Lake precinct for that place were illegal, and that more than 20 others might have been shown to be illegal had not the court refused as evidence certain admissions made to the relator, Dean, after the election, touching the qualifications of voters who are claimed to have made such admissions; and third, that the court erroneously refused to order process to compel the attendance of certain witnesses on behalf of the relator at the trial. In respect to the registration in the two precincts named, we find from the testimony of the judges of election that there was no registration of voters in Teller precinct, the reason being that the county clerk, whose duty it was to furnish registration blanks for the purpose, failed to furnish any to this precinct, and the board of election judges waited for them up to the day of election without receiving them or making any otherwise. As to Lulu precinct, the record shows that a registration was made, which seems to be in substantial compliance with the statute, and a certified copy of the registration list was put in evidence without objection, and the returns from that precinct were therefore entitled to be counted. There was no error in the refusal of the testimony of the relator as to the alleged admissions of certain voters made after the election touching their qualifications. Such testimony was but the unsworn declarations of parties who were not present to contradict or explain such declarations, and sound rules of evidence, as well as reasons founded upon public policy, favor the exclusion of such evidence as hearsay and a means of accomplishing fraud rather than practice. McCrary on Elections, § § 270-271, and cases cited. As to complaint that process was refused to compel the attendance of witnesses, it appears that certain witnesses who had been subpœnied, and who had come to the place of trial in obedience thereto, had afterwards refused to appear in court and testify unless their fees were first paid, and that upon affidavit of these facts and motion for attachment, the court declined to award compulsory process to compel such witnesses to appear in court and testify in the case. While the court in its discretion was undoubtedly authorized to compel such witnesses to appear in court and testify, yet for this court to reverse the finding of the court below, and send the case back, upon that ground, is a different matter, and one we would not be warranted in doing, since the affidavit of the relator for the attachment prayed fails to set forth what is expected to be proved by such witnesses, or to even aver that the testimony of any one of them was necessary, pertinent or in any way material in the case. Coming to the count of the votes cast upon the question in controversy, it appears that counsel for respondents, acting under what was understood to be the rule, laid down in McCrary on Elections, § § 62-174, that where the presumption that votes cast were legal, is overcome by the fact that there was no registry, the burden of proof is upon the party claiming the benefit of the vote, to prove that it was legal, and entitled to be registered and cast, made proof that nine votes cast at Teller precinct, where there was no registry, were legal and were cast for Grand Lake for County Seat. It is claimed on behalf of respondent, that the legal number of votes to be counted for Grand Lake stands thus: Gaskill precinct, 8 votes; Lulu precinct, 27 votes; Grand Lake precinct, 54 votes; Hot Sulphur Springs precinct, 4 votes; Teller precinct, 9 votes; making a total of 102 votes cast for Grand Lake. The total vote at Grand Lake precinct was 60, 54 of which were cast for that point for the County Seat, including the 13 which were cast for the location at Grand Lake west side. We do not think that these votes should be rejected for that reason, as claimed on behalf of the relator. The question voted upon was the removal of the Gounty Seat from Hot Sulphur Springs to Grand Lake, and the designation by the local voters at Grand Lake of a particular point at the lake as the preferred site ought not to be taken into account. Each individual voter might possibly have been interested in preferring a different spot as the exact site for the county buildings on the shore of the lake. It was a matter for the board of county commissioners to determine the exact site at the lake, if a majority of the legal voters of the county should vote in favor of the removal from the springs to the lake. At Hot Sulphur Springs precinct 59 votes were cast upon the question of removal, 5 of which were in favor of the removal to Grand Lake, and of these 5 votes 4 were found to have been legal, leaving 54 in favor of the springs, which added to 25 cast at Troublesome precinct, make 79 in all cast against the removal in the whole county. Taking the 102 votes, as before estimated, as the total for Grand Lake, and 79 for the springs, it gives Grand Lake a majority of 23 votes. If we reject the 9 votes counted from Keller precinct in the above estimate that is to say, if the entire vote at Keller precinct is thrown out-leaving a total of 93 for Grand Lake, it still gives a majority of 14 votes for Grand Lake. It is claimed on behalf of the relator that the testimony shows that 8 or 10 of the votes cast at Grand Lake precinct in favor of that point, were illegal, and that had the court permitted the introduction of the evidence of Dean as to the declarations of voters, before referred to, it would have been shown that as many as 29 altogether of the Grand Lake votes were not entitled to be counted. On the other hand, it is claimed by counsel for respondents that the evi |