2. MUNICIPAL CORPORATIONS (§ 816*)-PER- | the negligence consist in allowing the loose SONAL INJURIES-DEFECTIVE SIDEWALK-NO- plank to remain in the sidewalk?

TICE OF DEFECT.

In an action against a city for injuries through a defective sidewalk, actual notice, or its equivalent, to defendant of the defect, must be pleaded and proved.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1714; Dec. Dig. § 816.*]

Appeal from District Court, Otero Coun

ty; John H. Voorhees, Judge.

Action by Alice L. Burns against the City of La Junta. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Marion F. Miller (Fred A. Sabin, of counsel), for appellant. G. M. Dameron, for appellee.

If yes,

then the plaintiff should have so averred. Whatever the negligence of the defendant, of which the plaintiff complains, the court should have directed her on this motion to

set it forth, if able to do so, and if unable to do it, to so say. The defendant had an charge against it was, and be thus placed undoubted right to know what the real defense it had. While this general allegain position to intelligently defend itself, if tion of negligence may possibly have been sufficient as against a general demurrer, it clearly was subject to the motion to make more specific and certain, and it was error to deny it. Wilson v. Denver, South Park & P. R. Co., 7 Colo. 101, 2 Pac. 1; Fitts. Adm'r, v. Waldeck, 51 Wis. 569, 8 N. W. 363; Hayden v. Anderson, 17 Iowa, 162; O. & M. R. Co. v. Collarn, 73 Ind. 265, 38 Am. Rep. 134; Railway Co. v. Lavalley, 36 Ohio St. 225.

BAILEY, J. This action was brought by Alice L. Burns, plaintiff below, appellee here, against the city of La Junta, appellant here, defendant below, to recover damages for personal injuries said to have been Upon the overruling of the motion defendoccasioned and sustained through a defect ant interposed a general demurrer to the in one of the city sidewalks. The precise complaint, which was also by the court language of the complaint on this point, aft-overruled, which action is likewise assigned er stating the legal duty of the defendant in respect to keeping the city sidewalks in proper condition for travel, is,

for error.

Thereafter issue was joined resulting in a verdict and judgment for the plaintiff for the defendant brings the case here on ap$500. It is to reverse this judgment that peal.

"That on, to wit, the 10th day of February, A. D. 1901, the plaintiff was lawfully passing along the sidewalk in front of lot 22, in block 18, in said city, and while so The only theory upon which a municipalpassing along and pursuing her journey, and while directly in front of lot 22 of blockity may be held liable for damages in a case 18, a plank which was loose in said side-like this is that it had notice, actual or walk gave way or raised up, tripping and constructive, of the existence of the alleged throwing the plaintiff and severely injured the plaintiff by breaking the surgical neck

of her left femur bone, and dislocating said limb at the ankle joint."

defect, and failed within a reasonable time to remedy it. The fact of actual notice, or its equivalent, to the defendant of the defect complained of is an ultimate fact, essenThe only allegation of negligence against tial to be established by proof and should the city is contained in the fifth paragraph be averred, else no cause of action is stated. of the complaint, which reads as follows: Not only is the fact of notice not pleaded, "Fifth. Plaintiff further says that the in- but there is an entire absence of allegations juries sustained as aforesaid were caused by from which notice could possibly be inferthe gross carelessness and negligence on the red. Indeed there is no attempt at pleading part of the defendant herein and in no wise any fact or circumstance from which it was the same caused by any carelessness might appear that the supposed defect could or negligence on the part of the plaintiff." or should at all have been known to the deThere is no allegation of notice to, or fendant and remedied by it. This was esknowledge by, the city, actual or construc-sential to fix liability and should have been tive, of the supposed defect.

alleged and set forth in the complaint. In this particular that pleading is fatally defective, and will not support the judgment rendered upon the verdict. This objection

A motion was interposed for an order requiring plaintiff, among other things, to state and set forth in her complaint in what manner the defendant was careless and neg-to the sufficiency of the complaint was urgligent respecting its duty to the plaintiff, as bearing upon her injury, which motion, after argument, was overruled. This action of the court is assigned for error. The averments of the complaint give no hint as to the particular or particulars in which the defendant was negligent or careless. Were they acts of commission or omission? Did

ed at all times, and at all stages of the proceeding; on the overruling of the demurrer. in objection to testimony, on motion for non-suit, on motion for a directed verdict, and in the motion for a new trial.

In Cunningham v. City of Denver, 23 Colo. 18, 45 Pac. 356, 58 Am. St. Rep. 212, upon this point this court said:

Judgment reversed.

"Aside from this, the ground of the ac- the court below to allow the plaintiff to tion against the municipality being its neg- file an amended complaint, as she may be lect to keep the street in repair, in order to advised. give a person injured a right of action against the corporation in this class of cases it must be alleged and proved that the city had notice of the defect, or had notice of facts equivalent thereto."

This court, upon the question of necessity of notice, has said:

"It is also to be borne in mind that where the action, as in this case, is based on negligence or omission to keep the sidewalk in

safe condition, that the question of notice becomes of importance. The rule is that notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred or

proof of circumstances from which it appeared that the defect ought to have been known and remedied by it, is essential to liability." City of Boulder v. Niles, 9 Colo. 415, 12 Pac. 632; City of Denver v. Dean, 10 Colo. 375, 16 Pac. 30, 3 Am. St. Rep. 594. Abbott on Municipal Corporations, vol. 3, § 1034, discussing this subject, says:

"The existence of a liability depending absolutely upon the possession of knowledge of the defect by the public corporation, it is, therefore, necessary for the plaintiff to show affirmatively in all cases notice either actual or constructive of the particular defect causing the injury complained of and the lapse of a reasonable time thereafter within which it might have been remedied in the exercise of ordinary care and diligence as depending upon the circumstances of that particular case. It is also necessary for the plaintiff in actions of this character, to plead the fact of notice, for without notice, as already stated, in acts of omission, there can be no liability. The burden is, therefore, upon the plaintiff to both allege and prove notice or a reasonable knowledge as a condition precedent to the liability of a public corporation in acts of omission. The burden, however, is on the defendant to plead and prove that it did not have a reasonable time in which to make the repairs before the injury was received."

We cite the following additional authorities, which are instructive upon the question before us for consideration and determination, and as being in harmony with and supporting our conclusion: Dillon on Municipal Corporations, §§ 1025-1027; Denver v. Saulcey, 5 Colo. App. 420, 38 Pac. 1098; Denver v. Aaron, 6 Colo. App. 232, 40 Pac. 587; Boulder v. Weger, 17 Colo. App. 69, 66 Pac. 1070; Denver v. Moewes, 15 Colo. App. 28, 60 Pac. 986.

STEELE, C. J., and WHITE, J., concur.

(46 Colo. 471)

LOWELL et ux. v. RICE.

(Supreme Court of Colorado. Nov. 1, 1909.) APPEAL AND ERROR (§ 635*) — RECORD - RE

VIEW.

the sufficiency of the evidence, which was conWhere the assignments of error relate to flicting, and to the overruling of the motion for a new trial, and the motion was not included in the abstract, the judgment will be affirmed.

[Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. § 2776; Dec. Dig. § 635.*] Appeal from County Court, City and County of Denver; Chas. McCall, Judge.

Action by W. L. Rice against O. W. Lowell and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

E. M. Sabin, for appellants. W. E. Clark, for appellee.

Any error in finding, in an action for the balance due on a construction contract, that failure to complete the work within the specified time was through the contractor's, and not the owner's, fault, was not prejudicial to one claiming under the contractor, where the court fur ther found that the owner rightfully terminated the contract upon the contractor's default

Since the cause must be reversed for the errors pointed out, we do not consider other assignments, or discuss the case upon its merits. The judgment will be reversed and the cause remanded, with instructions to For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

and abandonment, and was compelled to complete the work at a cost greatly exceeding the balance claimed to be due.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]

Appeal from District Court, Weld County; Christian A. Bennett, Judge.

Action by the Farmers' National Bank of Longmont against the Union Reservoir Company and others. From a judgment dismiss ing the action, plaintiff appeals Affirmed.

F. A. Williams, for appellant. F. P. Secor and J. T. Adams, for appellees.

folio numbers of the transcript where the rulings and exceptions, if any, appear, as rule 11 of this court requires. But it is more satisfactory to say that our examination of this general objection shows that it is clearly untenable. The other two assignments, to which the arguments and briefs of counsel have been chiefly directed, may be considered together.

the court are not only contrary to the weight 2. The appellant says that the findings of of evidence, but in some respects are not based upon any legal evidence whatever. We refer again to the issues made by the pleadings to which the evidence was responsive. Time was expressly made the essence of the contract. There was an imperative need by the stockholders of water from its reservoir for their crops not later than the time specified for the completion of the contract. Unless the outlet or trench was completed, water could not be available for that purpose. The court found upon sufficient legal evidence, and, in fact, it is conceded by plaintiff, that the work was not done within the specified time. Plaintiff contends, however, that such failure was not due to the contractor's, but to defendant's, conduct. The court found this issue against plaintiff. But if, in this respect, there was error, it is not prejudicial, and not ground for reversal, because the court further found upon conflicting evi

CAMPBELL, J. The appellee reservoir company entered into a contract with certain persons whereby they agreed to build, or rather complete, an outlet or trench from its reservoir within a specified time for a certain consideration and in accordance with plans and specifications prepared by, and to the satisfaction and subject to the approval of, its engineer. A previous similar contract had been made between the same parties for this same work, which the contractors were unable to perform within the specified time, and this one took its place; the time of performance being extended and being made of its essence. During the progress of the work the contractors borrowed various sums of money of plaintiff bank with which to prosecute the work, and, to secure pay-dence that plaintiff's assignors failed subment thereof, assigned to the bank the alleged balance due them on the contract, to recover which is the object of this action. In the answer of the reservoir company are two principal defenses: (1) Nonperformance of the contract in accordance with its terms and specifications; (2) because of such noncompletion and the abandonment of work by the contractors defendant company was oblig. ed to, and did. complete the contract at a cost greatly exceeding the alleged balance due. The court found all the issues in favor of defendant and dismissed the action.

It is, of course, conceded that, unless the contractors in a suit by them against the reservoir company could recover a judgment upon the claim for an alleged balance, the bank could not maintain this action, since it is a mere assignee, and stands in the shoes of its assignors. The three assignments of error upon which the appellant bank relies are (1) that the court erred in excluding evidence offered by it; (2) the findings and decree are contrary to the evidence and to the weight of evidence; (3) the findings and decree are contrary to the law and the evidence. There is no controversy between the parties as to the law applicable to the facts. The court correctly applied the law.

stantially in other important particulars in the manner of performing the work under the contract; that they abandoned it; that defendant reservoir company was justified in terminating it, and was obliged to complete the contract at a cost greatly in excess of the balance which the assignors and the assignee claim still to be due. If, therefore, upon these issues the findings of the court should be sustained and rest upon sufficient legal evidence, the decree dismissing the action was right.

In a vigorous argument appellant's counsel insists that there is no legal or sufficient evidence to sustain these findings, that they are predicated upon insufficient data, and upon hearsay testimony of defendant's witnesses. To this point and to the unsubstantial character of this sort of testimony, and as sustaining his contention, Hottel v. Poudre Valley R. Co., 41 Colo. 370, 92 Pac. 918, is cited. There this court held that certain findings made by the trial court could not be sustained because the only evidence in the record upon which they were, or could be, made was purely hearsay, conjectural, inadmissible, and secondary. The examination of the record in the pending case shows that in the respects noted it is not similar or analogous to the Hottel Case. There is abundant testimony in this record by competent witnesses, and reliable data are furnished by witnesses who made the computation and

1. The first assignment of error, that the court erred in excluding evidence offered by the bank, might well be disregarded, because no reference is therein made to the

(Supreme Court of Colorado. April 5, 1909. county commissioners, the hold-over board in

Under Salary Act 1891, p. 312, § 12, as amended by Acts 1899, p. 336, c. 134. § S, prohibiting county clerks from receiving any additional compensation in excess of the maximum salary provided by the act, the clerk was not entitled to any compensation under Act 1903, p. 162. c. 79, § 5, amending Act 1901, p. 136, c. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 104 P.-CO

records, relator was not entitled to testify as to the findings of a committee claimed by relator to have checked up the number of folios transcribed by him; the findings of the committee being the best evidence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 492; Dec. Dig. § 158.*]

to have the transcripts of said records made. said duty as provided by the amended act of Previous to entering upon the discharge of 1903, the board of county commissioners of Adams county passed and caused to be entered of record the following resolution:

Error to District Court, City and County "Resolution by Board of County Commisof Denver; John I. Mullins, Judge.

Mandamus on petition of C. E. Lunney against Thomas A. Uzzell and others. Decree for relator, and defendants bring error. Reversed and remanded.

This is a proceeding in mandamus, instituted by defendant in error against the plaintiffs in error, to compel them, as the board of county commissioners of the city and county of Denver, and as the chairman and clerk of said board, to draw warrants in his favor in the aggregate sum of $30,231.34, which amount he claims is due him from said city and county in having transcribed that portion of the records of what was formerly old Arapahoe county, which relates to property in the present county of Adams. The action appears to be based upon, and, in order to have the contentions finally settled, calls for, the proper construction of section 5, p. 162, c. 79, Act 1903, amending Act 1901, p. 136, c. 57, § 10, which created the county of Adams. That portion of section 5 concerning the present contention reads as follows:

"Sec. 5. That section 10 of said act be and the same is hereby amended so as to read as follows:

sioners.

"Resolved, that C. E. Lunney, county clerk of the county of Adams, be and he is hereby authorized and directed, as soon as practicable and within six months from the 15th day of April, 1903, to procure, to be transcribed, all records in the office of the county clerk and recorder's office of the city and county of Denver, that pertain to the county of Adams into proper record books. The compensation for furnishing said records shall be as provided by law; folio work is hereby fixed at 10 cents per folio. The manner of payment shall be as provided by law."

Thereafter the defendant in error proceeded to have said work done. Whether he let it by contract or employed people to perform such labor by the day, folio, or in what manner is not shown by the record; the position of the defendant in error, as we understand it, being that, pursuant to said law and resolution, it was his right to have it done in such manner and at such price or prices as he saw fit, he being the county clerk and recorder of Adams county, and the person designated by law to have it done, and was entitled to be paid therefor at the rate of 10 cents per folio, regardless of the actual cost to him for such work. It appears he first caused the tax sales and some other records to be transcribed, presented bills therefor to the board of supervisors of the city and county of Denver, acting as a board of county commissioners, which were audited by them, and the sum of $14,937.35, out of the total of $15,693.30, was paid by the city and county of Denver for such transcripts; the difference being paid by Adams county. He then caused the remainder of said records to be transcribed. According to his testimony, the amount to be paid him, at the rate of 10 cents per folio, would be $47,451.50, of which, ac

"Sec. 10. The county clerk of the county of Adams shall, as soon as practicable, and within six (6) months from the fifteenth (15) day of April, A. D. 1903, have transcribed all records in the office of the county clerk and recorder's office of the city and county of Denver that pertains to the said county of Adams, into proper record books, to be provided by the said county of Adams, within the time herein designated. The county clerk and recorder and the commissioners of the city and county of Denver shall afford every reasonable opportunity and facility for transcribing such records. The cost of transcribing the said records, and the manner of pay-cording to his claim, the share of the city and ing therefor, shall be determined as is provided for other matters of revenue in section 9 hereof. Provided that the rate of compensation to be paid for transcribing said records shall be fixed by the board of county commissioners of said Adams county, at a rate not to exceed ten cents per folio.'"

county of Denver amounted to $45,168.69, less the $14,937.35 paid, leaving a balance due him from the city and county of $30,231.34. On May 5, 1905, he presented to the auditor of the city and county of Denver five bills in the aggregate of said amounts, which the auditor on May 8, 1905, attempted to audit, approve, It appears from the record that after the and allow, although it is not claimed the acpassage of the amended act of 1903 con- tions of the auditor were binding upon any cerning Adams county the defendant in error On the 27th day of June, 1905, he pre(who, after the creation of Adams county, sented each of these bills to the board of suhad been appointed its county clerk and re-pervisors of the city and county of Denver, corder, qualified as such, was thereafter, at the 1904 election, elected his own successor) proceeded, under the provisions of said act,

one.

which board were at that time still pretending to act as a de facto board of county commissioners for the city and county, and it