A quasi corporation is an organization or body invested with certain limited corporate powers. It does not possess the general powers of corporations, but, within its own subordinate and inferior sphere, it is a corporation, with duties which may be enforced and rights which may be maintained in like manner and with the same effect as in the case of corporations with general powers. Commissioners v. Mighels, 7 Ohio St. 109; Inhabitants of School Dist. v. Wood, 13 Mass. 192; Clarissey v. Fire Department, 1 Sweeney, 224; Bouv. Law Dict. tit. "Quasi Corporation." It is the constitution of the body, the purpose for which it is organized, the extent of its powers, and the manner in which they are exercised, rather than the particular statutory language employed in its creation, which determine its character as a corporation or a quasi corporation; and a mere statutory declaration that it is a body corporate and politic does not change its inherent character. The distinction between municipal corporations proper and counties is precisely that which exists between corporations with general powers and quasi corporations. It is true that a municipal corporation owes its existence to the laws of the state, that its mode of existence and its powers are prescribed by statute, and that, in a qualified sense, it is an agent of the state, in its government; but its primary purpose is the administration of its own internal affairs. It is a community invested with peculiar functions for the benefit of its own citizens. It possesses a local government of its own, with executive, legislative, and judicial branches. It can enact and enforce ordinances, having the force of laws, for the regulation of its domestic concerns and the preservation of its peace. For injuries occasioned by the neglect or wrongful acts of its agents or servants in the construction of its local improvements, or by its own neglect in keeping them in repair, its liability is the same as that of a private corporation or a natural person. It can provide for the supply of water and light to its inhabitants, and own and operate works necessary for such purposes; thus taking upon itself the duties, and assuming the liabilities, of a private corporation. Within the boundaries of its granted powers, it is independent. The character of a municipality, with its accompanying duties and burdens, is assumed voluntarily. There can be no municipal organization without the consent of the inhabitants of the territory which it is to embrace, and the municipality, when organized, is what Mr. Beach terms a "full-fledged" corporation. 1 Beach, Pub. Corp. $§§ 3, 5; Park Com'rs v. Detroit Common Council, 28 Mich. 228; Woods v. Colfax Co., 10 Neb. 552, 7 N. W. 269; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705. The difference between this class of corporations and counties is fundamental and evident. A county

is created by the legislature without reference to the will of its inhabitants. It has no power of local government, or independent authority of any kind whatever. Its officers, although elected by its people, are virtually officers of the state, and are charged with the administration and execution of the laws of the state. It is merely a subdivision of the state for the purposes of state government. It is nothing more than an agency of the state in the general administration of the state policy, and, unless an action is given by statute, none lies against it. Commissioners v. Mighels, supra; Woods v. Colfax Co., supra; Commissioners v. Churning (Colo. App.) 35 Pac. 918; Hedges v. Madison Co., 1 Gilman, 567. In Nebraska, counties are bodies corporate and politic, as they are with us. See Gen. St. Neb. 1873, p. 231. But in Woods v. Colfax Co., supra, the supreme court of that state held that a county was not a municipal corporation, citing with approval the case of Riddle v. Proprietors, 7 Mass. 169, in which counties are designated as "quasi corporations." In Illinois, also, counties were, by statute, constituted bodies corporate and politic; but in Hedges v. Madison Co., supra, they are denominated "quasi corporations." See, also, Donalson v. San Miguel Co., 1 N. M. 263. There are numbers of other cases in which counties, invested with the same corporate powers, duties, and liabilities as in this state, although not in terms declared by statute to be corporations, are classed as quasi corporations. The question has never been directly passed upon in this state, but in County Court v. Schwarz, 13 Colo. 291, 22 Pac. 783, the court incidentally say that the phrase "municipal corporations," as employed generally in our constitution and statutes, means "cities and incorporated towns," and in City of Denver v. Dunsmore, supra, the court applies the term "quasi corporations" to counties, seemingly as a matter of course. Our investigation of the question in the first opinion was directed not so much to an abstract definition of terms as to an ascertainment of the meaning attached to them by the legislature. In providing for the liability to garnishment of different classes of corporations, it evidently regarded quasi corporations as outside of municipal corporations; and unless, by the term, such corporations as counties were meant, there are no corporations in this state to which the name "quasi corporations" can be applied. We assumed that the terms "municipal corporations" and "quasi corporations" were used in the sense which is ordinarily given to them, and we see no reason to change the opinion then expressed.

It was held in Commissioners v. Bond, 3 Colo. 411, that a county's exemption from garnishment might be waived by appearance and submission to liability. In this case the answer to the interrogatorics was

made by the county clerk. He afterwards filed a supplemental answer, which the plaintiffs moved to strike from the files. The record recites that, upon the hearing of the motion, W. A. Reese appeared for the motion, and T. J. Jackson, contra. Afterwards, the county appeared in the case by O. S. Galbreath, the county attorney, and moved the court to dismiss the proceedings because the county was not liable to garnishment. The duties of the county clerk are defined and prescribed by the statute. No authority is given him to enter the appearance of the county in any legal proceeding, and the filing by him of the answer and supplemental answer did not constitute an ap pearance by the county in the case. It appears that the motion to strike out the supplemental answer was resisted by T. J. Jackson. Who T. J. Jackson was, or in what capacity he purported to act, the record does not disclose, but there is nothing to indicate that he was in any way authorized to represent the county. The statute provides for the appointment by the commissioners of a county attorney. This attorney, when appointed, is the proper representative of the county in legal proceedings to which it is a party, and is authorized to appear for it in its litigation. The record shows no appearance for the county by any person with authority to bind it, until the filing of the motion to dismiss by the county attorney. That appearance was not in submission to, but in denial of, liability. We find no waiver by the county of its exemption from garnishment. For the foregoing reasons, our first decision will be adhered to.

(5 Colo. App. 311)

WILLIAMS et al. v. LACLEDE FIREBRICK MANUF'G CO.1 (Court of Appeals of Colorado. Sept. 24, 1894.) CONTRACT-PROVISIONS AS TO PAYMENT-TRUS

TEE'S LIABILITY.

A contractor for the building of a city sewer agreed to buy a certain quantity of pipe from a manufacturer thereof; payments to be made by a person designated a trustee, who held a power of attorney from the contractor to collect from the city all amounts due him under his contract. The trustee accepted the trust, to be construed with his power of attorney, which authorized him to pay only for materials used in the sewer. Held, that the trustee was not liable for pipe shipped to the contractor under the contract, but which was not used in the sewer.

Appeal from district court, Arapahoe county.

Action by the Laclede Fire-Brick Manufacturing Company against Joseph Williams and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

Lucius P. Marsh and V. D. Markham, for appellants. Lipscomb & Hodges, for appellee.

1 Rehearing denied January 14, 1895.

THOMSON, J. In the month of June, 1882, Williams, having a contract with the city of Denver for the construction of the Twentieth street district sewer, contracted with the Laclede Fire-Brick Company for certain material to be used in the building of the sewer. This material, to be delivered by the company to Williams, was described in the contract between them as follows: "2,700 lineal feet 21-in. sewer pipe, more or less; 3,430 lineal feet 18-in. sewer pipe, more or less; 9,340 lineal feet 15-in. sewer pipe, more or less; 10,824 lineal feet 12-in. sewer pipe, more or less; 33,400 lineal feet 9-in. sewer pipe, more or less; 7,000 lineal feet 6-in. sewer pipe, more or less; 30 pieces 6 in. x 21 in. Y junctions, more or less; 35 pieces 6 in. x 18 in. Y junctions, more or less; 300 pieces 6 in. x 15 in. Y junctions, more or less; 88 pieces 6 in. x 12 in. Y junctions, more or less; 3,300 pieces 6 in. x 9 in. Y junctions, more or less." The price of the material was the list price, discounted at the rate of 70 per cent. The contract also contained the following stipulations: "Said herein-named material shall be in accordance with the requirements of said second party's contract with the said city of Denver, as per specifications relating thereto furnished first party herewith; and the second party agrees to and with the first party to receive the material herein mentioned, and shipped according to the terms of the contract, on board cars at the works of first party, in accordance with the terms of bills of lading taken by the first party in the usual manner and form, and to pay for same as follows: Eighty (80) per cent. of the amount of material furnished under this contract included in city engineer's monthly or other estimate shall be paid to John W. Horner, of Denver, acting as trustee, by agreement of the parties hereto, within thirty (30) days after the delivery of the warrant for any such estimate, who shall, without delay, pay over any such amount to first party, either by sight draft payable to first party's order in St. Louis, or by a legal warrant of said city of Denver, at par value, properly issued and presented to the city treasurer, and indorsed by said treasurer, so that any such warrant will bear ten (10) per cent. interest per annum from date thereof until paid. And it is further understood and agreed by and between the several parties hereto, and by John W. Horner, acting as trustee for the parties hereto, that in consideration of first party's agreement to receive the eighty (80) per cent. of value in part payment for the material furnished under this contract, as the same may be estimated upon at any time by the city engineer of said city of Denver, that said first party shall have a special lien upon the twenty (20) per cent. retained by the said city of Denver out of ali estimates under the contract of said second party with the said city of Denver, for the

construction of the said Twentieth street district sewer, for the purpose of securing said first party in the full payment of any claim that may be due to said first party by said second party under any provision of this contract. And, inasmuch as said John W. Horner now holds a power of attorney from said second party authorizing him to collect all moneys or other things that may be due said second party under said contract with said city of Denver as therein fully set out, it is agreed between the respective parties hereto (said John W. Horner assenting) that John W. Horner shall, out of said twenty (20) per cent., as and when the same shall come into his hands under his power of attorney, pay to said first party, in full, any amount in any manner accruing to first party from second party under this contract; it being the intention of this contract that said twenty (20) per cent. of all estimates retained by said city of Denver under second party's contract therewith, or as much thereof as may be necessary therefor, shall, upon receipt thereof by said John W. Horner under said power of attorney, be held and deemed to be for the use and benefit of said first party, for the purpose of paying in full all claims of said first party against said second party that may arise in any manner under this contract." On the day of its execution, Horner indorsed upon the contract his acceptance of the trust, as follows: "I hereby accept the aforementioned trust created by the parties in the foregoing contract according to the true tenor and effect of said contract, and will perform the same according to the true tenor and effect thereof, construed with the power of attorney given me by Joseph Williams, party of the second part, to collect and disburse the proceeds arising from his contract with the city of Denver referred to in said contract. John W. Horner. Denver, Colorado, June, 1882." The following is the power of attorney referred to: "Know all men by these presents, that I, Joseph Williams, of the city of Denver, in the county of Arapahoe, and state of Colorado, do hereby make, constitute, and appoint John W. Horner, of the city of Denver, in the county of Arapahoe, in the state of Colorado, my true, sufficient, and lawful attorney, irrevocable, for me and in my name, to receive, receipt for, and take from the city of Denver all warrants or other evidences of indebtedness that may become due me for work done or to be done, materials furnished or to be furnished, or otherwise that may become due me under my contract with the city of Denver for the construction of the Twentieth street district sewer in the city of Denver aforesaid, and to see to or negotiate and sell said evidences of indebtedness or warrants for the best price that can be obtained therefor at the time, and apply the proceeds thereof, or see that the proceeds thereof are applied, to the payment for the materials used

in the said district sewer, or that may be used in said district sewer, and the labor that may be employed in the performance of the work necessary to construct the said sewer; the intention of this instrument being the protection of the parties interested in the construction of said district sewer, including the bondsmen of the party of the first part, the city of Denver, and the parties furnishing materials and labor for the construction of said district sewer. Hereby giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I myself might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, I have hereunto set my hand and seal, this 27th day of April, A. D. 1882. Joseph Williams. [Seal.]" The complaint alleged the delivery to Williams of sewer material of the value of $12,425.61, of which there had been paid the sum of $9,766.03, leaving an unpaid balance of $2,659.58, to recover which this action was brought. The defendant Horner answered, averring the payment by him to the plaintiff in full for all material furnished by it under its contract which was used in the construction of the sewer. Williams also answered payment.

Upon the evidence given at the trial, the court made the following findings: "(1) The plaintiff delivered on board the cars at St. Louis, and shipped to the defendant Williams, the following sewer material, charging him therefor in this action the total sum of $11,663.25, and crediting him with payments thereon amounting to $9,766.03: 2,262 feet of 21-inch sewer pipe; 2,904 feet of 18-inch sewer pipe; 2,764 feet of 15-inch sewer pipe; 6,222 feet of 12-inch sewer pipe; 22,508 feet of 9-inch sewer pipe; 7,150 feet of 6-inch sewer pipe; 36 feet of 21-inch gutter pipe; 30 pieces of 6x21-inch Y junctions; 96 pieces of 6x18inch Y junctions; 139 pieces of 6x15-inch Y junctions; 530 pieces of 6x12-inch Y junctions; 1,570 pieces of 6x9-inch Y junctions; 25 pieces of 9x15-inch Y junctions; 24 pieces of 21x12inch D Y junctions; 47 pieces of 18-inch curves; 31 pieces of 15-inch curves; 333 pieces of 9-inch curves; 52 pieces of 9-inch curves, 35 radius. (2) The sewer pipe and Y junc tions of all kinds and descriptions actually used in the sewer, as shown by the final estimate of the city engineer, was the following: 2,806 feet of 21-inch sewer pipe; 2,958 feet of 18-inch sewer pipe; 2,570 feet of 15-inch sewer pipe; 7,320 feet of 12-inch sewer pipe; 26,166 feet of 9-inch sewer pipe; 33 pieces of 21x6inch Y junctions; 57 pieces of 18x6-inch Y junctions; 50 pieces of 15x6-inch Y junctions; 459 pieces of 12x6-inch Y junctions; 657

pieces of 9x6-inch Y junctions; 9 pieces of 6x6-inch Y junctions. (3) The following sewer material shipped by the plaintiff to the defendant was not used in the sewer, nor estimated for by the city engineer, and none thereof, except the 7,150 feet of 6-inch pipe, was provided for in the plaintiff's contract with Williams: 7,150 feet of 6-inch sewer pipe; 36 feet of 21-inch gutter pipe; 24 pieces of 21x12-inch D Y junctions; 47 pieces of 18-inch curves; 31 pieces of 15-inch curves; 333 pieces of 9-inch curves; 52 pieces of 9-inch curves, 35 radius. It is charged up in the plaintiff's bill at $1,039.33. (4) In constructing the sewer, there was placed therein the following sewer material purchased from the Cambria Company, and not furnished by the plaintiff: 239 feet of 21-inch sewer pipe; 1,006 feet of 18-inch sewer pipe; 140 feet of 15-inch sewer pipe; 1,034 feet of 12-inch sewer pipe; 294 feet of 9-inch sewer pipe; 14 pieces of 6x18-inch Y junctions; 275 pieces of 6x9-inch Y junctions. The value of this material, calculated upon the basis of the plaintiff's contract with Williams, was $1,103.05. (5) The plaintiff is entitled to recover from the defendants the sum of $1,039.97, and the interest thereon at the rate of eight per cent. per annum. The amount of the recovery is ascertained by calculating the contract price of all the sewer material delivered by the plaintiff on board the cars at St. Louis, and shipped to the defendant Williams, which is described in plaintiff's contract with Williams, and deducting therefrom the total amount admitted by plaintiff to have been paid upon the entire bill. Nothing is allowed plaintiff for sewer material delivered by plaintiff on board cars at St. Louis, and shipped to defendant Williams, which is not described in the contract between plaintiff and Williams, and Williams is not allowed to reduce plaintiff's claim in this action by reason of the fact that he placed in the sewer pipe which he purchased of the Cambria Company." The plaintiff had judgment for $1,781.16, from which the defendants appealed.

The findings are accepted by both sides as correct, in so far as the facts are concerned, but it is contended by appellants that the court erred in its application of the law to these facts. It was held by the supreme court, when this cause was before it, that, under the pleadings and evidence, whatever liability might have been incurred in favor of the plaintiff attached to both defendants. Manufacturing Co. v. Williams, 14 Colo. 37, 23 Pac. 453. Accordingly, the judgment from which this appeal is prosecuted was rendered against the defendants jointly. Horner was not interested in the sewer contract with the city, and is a party to the contract between the plaintiff and Williams only by virtue of his written acceptance of the trust which it created; and, whatever might be the amount for which Williams became liable upon his contract with the plaintiff, this judgment, being against Hor

ner jointly with Williams, must be confined to the amount, if any, for which Horner is in default. The obligations which the latter assumed are defined and limited by his contract of acceptance, and he can be held only to the performance of the acts which he expressly agreed to perform. His agreement was to execute the trust in accordance with the tenor and effect of the contract creating it, construed with the power of attorney from Williams. The effect of the qualifying clause is to limit his obligations to the plaintiff to the performance of the acts which he was authorized to perform by the terms of that instrument; and, to ascertain what he was bound by his agreement to do, we must look to the power of attorney. The authority which it conferred upon him was, in the name of Williams, to receive from the city of Denver all warrants or evidences of indebtedness coming to Williams for work and materials for the construction of the sewer, to sell these warrants, and apply their proceeds in payment for the materials which might be used in the sewer, and the labor that might be employed in the performance of the work. To authorize any payment by him for either material or labor, the material must have been used and the labor employed in the sewer. The effect of his agreement was that he would make pay. ments to the plaintiff, upon its contract with Williams, in accordance with the authority granted in the power of attorney, for materials which, pursuant to its contract, it might furnish for the sewer. To that extent he bound himself to the plaintiff, and no further. The duty of Horner, therefore, under his agreement, was to apply the money realized by him from the city warrants in payment for such of the material furnished by the plaintiff as was used in the sewer. If he did make such application of the money, he has fully performed his agreement; if he did not, then he is liable only for the amount received which was not so applied. According to the court's findings, there were certain articles delivered to Williams by the plaintiff which were not embraced in their contract. Of course, for those articles there could be no recovery in this action against any person. This is con ceded by counsel. But the findings show a considerable quantity of material furnished by the plaintiff, in accordance with the terms of its contract, which was not used in the sewer, and a portion of which was replaced by like material purchased from the Cambria company. It is this furnished and unused material which is the real subject of the present controversy. It is contended by plaintiff's counsel that the defendants are liable for the whole amount of sewer pipe specified in the contract which was delivered to Williams, no matter what use was made of it; that it was not incumbent upon the plaintiff to see that the pipe was actually placed in the sewer; and that its responsi

bility ceased when the pipe was delivered to Williams upon his order. As between the plaintiff and Williams, we do not question the soundness of the proposition. We do not see anything in the contract which requires that, in order to fasten a liability upon Williams, the materials should have been actually used in the sewer; but, even if it were otherwise, Williams would hardly be permitted to say that articles embraced in the contract, and ordered by him to be used in the sewer, were not so used, and, if this suit had been brought against him alone, we would be compelled to admit the force of counsel's argument. But the principle contended for had no application whatever to Horner. He had nothing to do with the ordering of the materials, or with the obligations to each other which were assumed by the plaintiff and Williams in their contract. He had no control over the disposition to be made by Williams of the material when delivered. If Williams had refused to receive it at all, and had repudiated his entire contract with the plaintiff, no liability of any kind would have attached to Horner. He simply took upon himself, as trustee, the duty of making certain payments specified in his power of attorney. Whatever of plaintiff's material was used in the sewer he agreed to pay for, out of the moneys received by him for city warrants. If none of the material was used, or if he was unable to realize any money for the warrants, he would owe the plaintiff nothing.

The court found the contract value of all the sewer pipe which the plaintiff delivered to Williams, and deducted only the amount of the payments and the value of such articles as were not included in the contract; and held the defendants chargeable with the entire amount of pipe contracted for which Williams had received. Judgment was entered accordingly. This was erroneous. The findings show that a considerable quantity of 15-inch pipe, 6x18-inch Y junctions, 6x15-inch Y junctions, 6x12-inch Y junctions, and 6x9inch Y junctions was not used in the sewer; and none of the 6-inch pipe was so used. No duty rested upon Horner to pay for this unused material, and its price should also have been deducted from the sum total. In this way a correct result could have been reached. But think a we more simple method of adjusting the account between the parties is, instead of finding a gross sum and making deductions, to ascertain the contract value of the particular materials, delivered under the contract, which were used in the sewer. For the excess, if any, of such value over the payments made, the plaintiff would be entitled to judgment. If there is no excess, the judgment should be for the defendants. By the terms of the contract, the sewer pipe was to be delivered to Williams at the rate of 70 per cent. discount from the list price. The amount delivered and used is shown by the findings. The list price ap

(5 Colo. App. 362) WATERBURY et al. v. FISHER.1 (Court of Appeals of Colorado. Dec. 10, 1894.) PLEADING AMENDED COMPLAINT-NEW CAUSE OF ACTION-WHAT CONSTITUTES - PARTITION-REFUSAL OF SALE AND ACCOUNTING - WAIVER OF OBJECTIONS-POWER OF COURT TO ORDER SALE -STATUTE OF FRAUDS-LIMITATION.

1. F. and L. each furnished money with which lots were bought in F.'s name, and he gave L. a receipt, reciting that the "above amount, together with one-half of profits of sales of lots, to be paid said L. at the time of sale, less expense of same." L.'s assignees filed a complaint in the nature of a bill for specific performance. Held, that an amended bill alleg ing substantially the same facts, praying for partition, did not state a new cause of action.

1 Rehearing denied January 14, 1895.