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the cattle 280 tons of hay owned by him- tion of parties, the injunction was dissolved self, for which Quincy agreed to pay him upon payment by defendants into court of $4.50 per ton, amounting to $1,260. (2) That $1,534.40, and the giving of a bond in the defendants Auld, McCorkle, and Hall were sum of $1,400, for the benefit of the plaintiff, about to take the cattle from his possession in case he obtained final judgment. Subseby virtue of two chattel mortgages given by quently a trial was had to the court, resultQuincy to Auld. (3) That the mortgages ing in the following finding and judgment: were not recorded in Saguache county at the "Wherefore it is ordered by the court that dates the cattle were delivered to him. (4) plaintiff's lien as agistor be, and is hereby, That at the time of receiving the cattle he decreed a superior lien to lien of defendhad no notice, constructive or otherwise, of ants' mortgages, or any other lien of dethe existence of the mortgages. (5) That the fendants; and the court having found that taking away of the cattle would deprive him there is due and owing plaintiff by defendof his lien as agistor, etc. Prayed an ex ants Auld and McCorkle the sum of $1,parte injunction, and asking that his lien 721.70, by reason of the premises,—therefore be declared superior to any other lien, etc. it is ordered and adjudged by court that On March 18th an injunction was granted plaintiff do have and recover from said deon a bond of $400, and summons and writ fendants Auld and McCorkle the sum of of injunction served the same day upon Mc- $1,721.70, with costs, and that the $1,534.40 Corkle and Hall. There was no service up- deposited by defendants with clerk hereof on Quincy or Auld. On April 6th, Auld, Mc- be applied to satisfaction of said judgment; Corkle, and Hall answered, denying that the and the bond of defendants given to secure cattle were ever intrusted to the plaintiff for any judgment in this cause is declared in the purpose of feeding, pasturing, and keep- full force and effect,"—from which an ap ing, or for any purpose; that plaintiff had peal was prosecuted to this court. kept and pastured the cattle as an agistor or in any capacity; that plaintiff fed any

John S. Mosby, Jr., and F. W. Lineau, for hay to the cattle, or that the hay was the

appellants. Chas. D. Jones, McIntire & Me property of the plaintiff; admitted that the

Donald, and En:erson J. Short, for appellee. cattle were pastured upon the land described, etc. For a second defense, set up that REED, J. (after stating the facts). Our Quincy wished to purchase cattle upon time; statute giving a lien to an agistor is as fol. exhibited, as inducement, the articles of lows (2 Mills' Ann. St. 8 2851; Gen. St. $ 2118; partnership between Travis, Reed, and him- | Amended Acts 1889, 232): “Any ranchman, self; that the purchase price of the cattle farmer, agistor, herder of cattle, tavern was agreed upon; that McCorkle went with keeper, livery-stable keeper, or other perQuincy to plaintiff's lands, and examined son to whom any horses, mules, asses, cattle, them, with a view of ascertaining the rela- sheep or hogs shall be intrusted for the purtion of the parties to the agreement, and pose of feeding, herding, pasturing, keeping their ability to care for the cattle; that or ranching, sball ha a lie

upon such plaintiff declared himself a member of the horses, mules, asses, cattle, sheep or hogs, partnership, and represented that all the for the amount that may be due for such lands, and the hay upon them, were to be feeding, herding, pasturing, keeping or ranco. used exclusively for keeping the cattle; that, ing, and for all costs incurred in enforcing relying upon the representations made, the such lien.” The suit was brought under this cattle were sold, notes taken, secured by section of the statute to secure and enforce chattel mortgages, which also embraced the a lien upon the cattle for the food consumed. bay, which had been sold by the plaintiff to “Agistment is where a person takes in and Quincy; that the plaintiff had actual and feeds or depastures horses, cattle, or similar constructive notice of the mortgages, and animals upon the land for reward." The that they we duly recorded; that, immedi- lien for agistment is purely statutory; ately upon placing the cattle on the prem- lien existed at common law. Chit. Cont. ises, cattle and hay were given up to the 435; 1 Smith, Lead. Cas. 222; Jackson v. charge and possession of Quincy, and that Cummins, 5 Mees. & W. 341; Smith v. during all the time Quincy had open, ex- Cook, 1 Q. B. Div. 79. The agistor had no clusive, and undisputed possession; that lien except by special agreement. Goodrich plaintiff had no possession nor rights, except V. Willard, 7 Gray, 183; Miller v. Marston, under the contract, etc.; that in February 35 Me. 155; Grinnell v. Cook, 3 Hill, 485. and March, 1893, plaintiff, in violation of The language of our statute giving the lien his contract, did claim an agistor's lien upon is: "The person to whom any

catthe cattle, and threatened to hold them as tle

shall be intrusted for the puragainst the mortgages; yed the suing pose of feeding, herding, pasturing, keeping out of the attachment against Quincy and or ranching," etc. The lien is for the food the levy; and admitted the taking of the and care expended upon the cattle of anpossession under the chattel mortgages. On other, where the cattle are intrusted to his March 27, 1893, the court overruled a mo- care. They must be delivered into his postion to dissolve the injunction, but increased session, and subject to his control, and the the bond to $2,500. Afterwards, by stipula. I bailment is such, and his possession so exclu

no

sive, that he may maintain trespass or trover cattle were to be purchased upon credit, against a wrongdoer for any injury to their and at the time the cattle were delivered possession (Story, Bailm. $ 443; Sutton v. knew that they were purchased upon credit Buck, 2 Taunt. 309; Rooth v. Wilson, 1 by Quincy. Consequently, until rescission Barn. & Ald. 59; Burton v. Hughes, 2 Bing of the contract of partnership, or until the 173); and is only responsible for ordinary title of the partnership was divested by denegligence (Jones, Bailm. 91, 92; McCarthy fault in payment of purchase money, the v. Wolfe, 40 Mo. 520). The complaint makes cattle were the property of the firm, and in a case clearly within the law of agistment, its possession, and under the management entitling, if sustained by evidence, the plain- of Quincy, who was, by the terms of the tiff to the lien: That, from October 21st and contract, invested with the care and control. 28th until December 30, Travis, as agistor, | Hence we find the plaintiff attempting to had pastured the cattle; "that from and assert an agistor's lien against his own after the last date, and until March 17, | property, as well as that of his partners, for 1833," at the special instance and request of pasturage he had conveyed to the firm as said Quincy, he (Travis) fed hay owned by his contribution to the capital stock, and bim to said cattle, etc. By the second par- for hay sold and delivered to the firm, oneagraph of the contract above cited, it is ob- third of which, upon settlement, was chargevious that the plaintiff leased to the partner- able to him, and the other two-thirds to ship, of which he was a member, the real | be paid by his partners. estate described, with all the rights and ease- This brief statement shows the impossiments pertaining and as shown by a subse-bility of maintaining a lien, where the requent paragraph for the term of five years. quirements are–First, that the cattle should Such leasing was exclusive of any individual be the property of another, in which the right or possession of the plaintiff. By the agistor had no rights of ownership; second, terms of the contract, Quincy was to manage that the stock was delivered for the pur. the partnership affairs, and, for the partner- poses of the agistment, under a contract of ship, to enter into the possession and exercise hire, with an agreement to pay for the food sole control of the leased premises. Pursu- and care. The contention of plaintiff is ant to the contract of partnership, a few that, by failure of Quincy to perform his days after its execution, Quincy purchased part of the agreement, he had a right to and from the defendants Auld and McCorkle the did rescind the contract of partnership, and cattle, 1,047 in number, received the posses- that it was void. If such were the fact, sion of them, placed them upon the land leas- how could it affect Auld and McCorkle, who ed from the plaintiff, and during all the had dealt with the partnership in good time, until possession was taken by defend faith, sold and delivered the cattle to the ants Auld and McCorkle, had exclusive cus- firm, and who had no notice of dissolution, tody, management, and control of them, un- nor protests? In other words, how could a der the provisions of the contract. It is al- lien be enforced against the property of leged in the complaint that the cattle were Auld and McCorkle by reason of the failure intrusted to him (plaintiff) by Quincy, and of Quincy to perform his agreements with that he fed the hay to them at the special his partners? The plaintiff contends that he instance and request of Quincy. Such be- rescinded the contracts of the purchase of ing the allegation, even if established by the cattle and the partnership ab initio the evidence, we are at a loss to understand First, because chattel mortgages were givhow a judgment and decree could be entered en without his knowledge, to secure the puragainst Auld and McCorkle, who had never chase price; second, because Quincy had delivered cattle into his possession, intrusted | purchased the cattle above the market price. him with hay, nor made any contract for These contentions may be briefly answered. feed or care.

First, they were matters with which Auld It is evident from the contract, and all and McCorkle had no connection, and of the evidence in the case, that the three which they had no knowledge. He testified tracts of land were devoted to partnership to his lack of knowledge, but from his tesuses by the plaintiff. Quincy was to buy timony it is impossible to determine when cattle at market rates, and manage the en- he first had knowledge of their existence. tire business, the third partner to furnish The mortgages were recorded very shortly the money for current expenses. Cattle after their execution. He testified that he were to be pastured upon the leased premis. had no knowledge before they were filed for es, fed when necessary, and marketed. The record. Again, that he had actual knowlcost of purchase of cattle, cost of caring for edge by a letter from the recorder of Januthem, and feed, aside from the pasturage ary 20th, and had heard of them before that from the leased land, were to be deducted time; again, knew they had mortgages from the amount realized, and the profits about the 1st of March. There is much eviarising from the transactions divided equal- dence from which it might be inferred that ly between the three partners. The contract he had knowledge about the time of the did not provide that Quincy should pur- purchase. But inference is unnecessary; chase the cattle for cash. The evidence of he by his own evidence fixes the date suffiplaintiff shows that he understood that the ciently early for the purposes of this case.

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V.

As a purchaser, it was his duty to know at of law that, when a party has an election to the time of the transaction. If he failed to rescind an entire contract, he must rescind know by reason of his own negligence, the it wholly or in no part. He cannot considresponsibility rests upon himself. There er it void for one purpose, and at the same is no attempt to charge any of the parties time in force for the purposes of recovering with concealing the fact from him. Wheth- damages. 2 Chit. Cont. 1089; Miner er he knew or not could not affect the rights Bradley, 22 Pick. 457; Voorhees v. Earl, 2 or property of Auld and McCorkle, and as Hill, 292; Junkins v. Simpson, 14 Me. 364; his share was in the profits, after payments Coolidge v. Brigham, 1 Metc. (Mass.) 550. of purchase, it seems a matter of no legal If a party, having the right to rescind a conimportance whether the purchase price was tract, does any act which amounts to an secured by chattel mortgage or in any other admission of the existence of the contract, way; the price was to be paid at maturity he cannot afterwards elect to treat it as of notes. As to the supposed rescission of void. Brinley Tibbetts, 7 Greenl. 70; the contract, either in purchase of the cat- Lindsey V. Gordon, 13 Me. 60; Barry v. tle from Auld and McCorkle or the contract Palmer, 19 Me. 303; Lawrence v. Dale, 3 of partnership, -as it seems very uncertain Johns. Cas. 23; Massen v. Bovet, 1 Denio, which is claimed to have been rescinded,- 69; S ay y. Fogg, 5 Mees. & W. 83. It is the testimony of plaintiff was peculiar as a shown by all the evidence, including that of basis for rescission. Although the cattle plaintiff, that although knowing the price were purchased by Quincy, and delivered paid for the cattle in the latter part of Octo the firm, upon the ranch, he did not know tober, and mentally resolving to rescind at the price of the cattle until a week after that time, he gave no notice of any such their delivery; that he said nothing to MC- intention, and acted under the contract, carCorkle at that time; did not know that he ried out its provisions, and recognized it had any interest in the cattle, and did not as binding and obligatory until some time know Quincy bought them from him. In in February following. Another well-set. view of another part of the testimony, these tled rule of law is that one party to a constatements are rather startling. Before the tract cannot rescind, when both cannot be sale McCorkle visited the ranch, and exam- placed in the identical situation which they ined pasturage and hay, which were shown occupied when the contract was made. by the plaintiff. The object of such investi- | Where this cannot be done, there can be no gation must have been stated, if not ap- rescission, and the party must proceed for parent, to ascertain if there was an ade- damages for failure to perform. 2 Chit. quate supply of food, so that his security for Cont. 1092. There is practically no limit to the purchase money would not be jeopard- the number of cases, English and American, ized. These circumstances must have con- asserting the proposition. It at once beveyed, to any man of ordinary intelligence, comes apparent that it was impossible in the facts: First, that the cattle were to be February to place the parties in statu quo purchased upon credit; and, second, that as of October previous. It is also an equal. the seller would rely upon the cattle as se- ly well-settled rule of law that when a parcurity. He also testified that he did not ty, by reason of fraud or failure of the ask Quincy or McCorkle the price paid; other party to perform, has the right of re. that he did not know the price on November scission, he must exercise it at once, as soon 1st, when requested to sign the notes; did as the fraud comes to his knowledge or the not figure from them the price, because he default occurs. 2 Pars. Cont. 797; Central knew they were too high; that he knew Bank v. Pindar, 46 Barb. 467; Burge v. the price before or at the time the second lot Railroad Co., 32 Iowa, 101; Zuck v. Mcwere delivered, which was October 28th, as Clure, 98 Pa. St. 511; Wilson v. Morse, 52 Quincy had told him. Comment upon these Wis. 240, 9 N. W. 1. A party cannot play two statements is unnecessary. He also tes- "fast and loose" at the same time, await tified that, upon learning the price of the results, and then make his election. stock, he (mentally) repudiated the contract As to the 280 tons of hay fed to the cat. of partnership; did not accept the cattle as tle, plaintiff's testimony shows it to have partnership property, but for the purpose been measured up and turned over to Quinof pasturage; but did not inform either cy at an agreed price of $1.50 per ton, to be Quincy or McCorkle of his repudiation or fed to the cattle pursuant to an agreement. intention until some time in February, al- He became creditor of the firm. The hay lowing his partners to continue the feed- amounted to $1,260, two-thirds of which, ing and care of the cattle and expenditure or $810, should have been paid by his partof money until that date, under the partner- ners; but he testified that he, in the first ship contract he had repudiated at its incep- instance, required money from his partners, tion in October. After the food was con- and they advanced him $1,000, a sum er. sumed, and it became evident that his sup- ceeding the two-thirds of the value of the posed speculation was a failure, he gave hay furnished. The finding and judgment notice of his rescission, and attempted to of the district court cannot be sustained shift his position, and become an agistor in- The allegations in the complaint are not stead of a partner. It is a well-settled rule only not sustained by any evidence in the case, but contradicted by all of it, including favor, in the Fremont district court, on April that of the plaintiff. No single fact, to 13, 1881, which was afterwards carried to the bring the transaction within the law of supreme court, and by that court reversed agistment, was established. The finding and remanded to the trial court. 18 Pac. 209. and decree of the district court will be re- The defendants answered: (1) Admitting versed. Reversed.

that a judgment was rendered in the cause, as alleged, which was thereafter carried to

the supreme court, but denying that the judg. (5 Colo. App. 527)

ment was reversed. (2) Alleging that on the COCHRANE et al. v. PARKER.

30th day of April, 1881, in an action then (Court of Appeals of Colorado. Feb. 11, 1895.) pending in the Fremont court between Eve. PLEA OF FORMER JUDGMENT - MOTION TO STRIKE

line Parker and the defendants, upon the -SHAM AND IRRELEVANT PLEADING.

same cause of action set forth by the adminis1. Under Civ. Code, $ 60, an entire defense trator, judgment was duly rendered for the cannot be stricken out on motion, except when defendants, which judgment still remained it is shown to be sham or irrelevant. 2. The complaint of an administrator sub

in full force and effect. (3) Alleging that a stituted as plaintiff declared on an indebtedness, judgment in the cause was rendered on the and alleged a former judgment for plaintiff in 30th day of April, 1884, in the Fremont court, the same action, and that the supreme court re- to reverse which Eveline Parker sued out a versed that judgment and remanded the case. Defendants pleaded (1) the statute of limita

writ of error, in virtue of which the cause tions, (2) a former adjudication, and (3) that a was certified to the supreme court (Eveline former judgmert was rendered for defendants, Parker being plaintiff in error, and the deto reverse which plaintiff's intestate sued out a

fendants, defendants in error); that Eveline writ of error; that, pending the proceedings in error, intestate died; and that the judgment died while the proceedings were pending in was reversed after her death without the sub- the supreme court; and that the judgment of stitution of any legal representative, by reason that court was reversed after her death, and of which the reversal was void. Held that, in the absence of a showing to that effect, it was

without the substitution of any legal repreerror to strike out the first two pleas, and that sentative, by reason of which the judgment part of the last relating to intestate's death of reversal was void. (4) Averring that the pending the proceedings in error, as being sham

alleged cause of action did not accrue to the and irrelevant.

plaintiff, nor to the plaintiff's testator, within Appeal from district court, Fremont county. six years prior to the commencement of this

Action by Eveline Parker against Frank suit. Cochrane and another. William C. Parker,

The plaintiff moved to strike out the whole administrator, was afterwards substituted as

of the second and fourth defenses, and all plaintiff. Judgment for plaintiff, and defend

that portion of the third defense relating to ants appeal. Reversed.

the death of Eveline Parker during the pendT. J. O'Donnell and W. S. Decker, for ap- ency of the cause in the supreme court, and pellants. Samuel P. Dale, for appellee. the reversal of the judgment after her death,

and without revivor of the suit in the name THOMSON, J. This action was originally of her legal representative, on the grounds brought by Eveline Parker against the de- that the several defenses mentioned were fendants, Cochrane & Dowling. Afterwards, sham, irrelevant, redundant, immaterial, and upon a showing made that the plaintiff had insufficient. The motion was sustained, and departed this life, having, during her lifetime, the ruling is assigned for error. by her last will and testament, devised and The practice prescribed by the Code rebequeathed to her husband, William C. quires that, where an entire defense is obParker, all her property and estate, real and jected to for insufficiency, the objection must personal, without naming any executor, which be taken by demurrer. It can be stricken out will had been duly admitted to probate and on motion only where it is shown to be sham recorded, and no administrator having been or irrelevant. If a portion of a defense apappointed, because there

no debts pears to be good, and a portion irrelevant, reagainst her estate, the court permitted the dundant, immaterial, or insufficient, the obsubstitution of William C. Parker, devisee, as jectionable part may, on motion, be stricken plaintiff, and a supplemental complaint was out. A demurrer does not lie to a part of filed by him in the cause. After the filing a pleading, and an entire defense cannot be of the supplemental complaint, William C. reached by motion, except where it is shown Parker was appointed administrator, with the to be sham or irrelevant. Civ. Code, $ 60. It will annexed, of Eveline's estate; and at the was therefore error to strike out the second trial of the issues joined, for the purpose of

and fourth defenses, unless they were sham avoiding a nonsuit, the plaintiff asked and ob- or irrelevant. Their sufficiency could not be tained leave to amend his complaint by the tested by motion. They seem to us to be well substitution as plaintiff of himself, as such pleaded, but, if the plaintiff judged otheradministrator. The administrator according- wise, he should have demurred. ly tiled his amended complaint, setting forth The second defense is a plea of former adar indebtedness of the defendants to Eveline judication; and the fourth, a plea of the statParker, amounting to $520, and also alleging ute of limitations. Neither is objectionable u judgment rendered in this cause, in their on the ground of irrelevancy. Both are de

were

fenses which the defendants had a right to one-third the rental value of the buildings per make, if they were made in good faith. The

month. Plaintiff alleged nonpayment of the action of the court in striking them out can,

sums due from the firm business, and those due

by special agreement, and a refusal by defendtherefore, not be upheld, unless it was made ants to accouut for collections or to allow plainin some manner to appear that they were tiff access to the books, and prayed for a sale, sham. A sham answer is one which, upon its

partition, and accounting. Held, that there was

no misjoinder of causes of action, and that the face, states a sufficient defense, but which is

complaint was sufficient as a bill for a discorfalse in fact, and is pleaded in bad faith, and cry, accounting, and winding up of the partas an impediment to justice. As it is sufficient nership affairs. in form, and there is nothing upon its face

2. Where the continuing partners agree to

pay the withdrawing member his proportion of determinative of its character, this must ap- the firm assets, he is entitled to an accounting, pear from matters aliunde. Evidence of some on their failure to do so. kind outside of itself must be produced, from

3. An allegation that, "at an attempt at

an accounting made at the time of dissolution, which it clearly appears that the pleading is

it was estimated" that the bills receivable and sham; but, when such showing is made, it be- property of a firm were of a certain value, is comes the duty of the court to strike it out. not an allegation of a statement or account Duffield v. Railroad Co. (Colo. App.) 36 Pac.

stated.

4. Where partnership buildings are on gov622. These defenses are apparently legiti

ernment land, the court will not decree a parmate. The good faith of the pleader is pre- tition of the possessory rights in the land at the sumed. It was not attempted, by any show

suit of one partner for a dissolution and an acing, to impress upon them a character differ

counting, but will decree a sale of the buildings

and a division of the proceeds. ent from that which they appeared to bear; and nothing is disclosed by the record which

Error to district court, Las Animas county. justifies the court in striking them out.

Action by B. Tarabino against R. Nicoli The third defense is an entirety. The por

and another for an accounting and winding tion which was stricken out and that which

up of a partnership. From an order sus.

taining a demurrer to the complaint, and a remains are dependent upon each other. The first, isolated from the second, contains noth

judgment dismissing the action, plaintiff

brings error. Reversed. ing that is relevant to the case, and is meaningless; and the second is unintelligible with- S. S. Wallace, for plaintiff in error. Northout the first. The defense, as a whole, sug- cutt & Franks and James McKeough, for de gests an important question of law, concern

fendants in error. ing which the authorities differ widely; and, it counsel disputed the soundness of the legal

REED, J. The question to be determined proposition upon which it was evidently is whether the court erred in sustaining a based, he should have demurred to the whole demurrer to the complaint and dismissing defense. He cannot be permitted arbitrarily

the suit. The complaint is not copied into to split into two parts a defense which, if it

the abstract, but counsel kindly refer us to is insufficient at all, is insufficient as a whole,

the record, saying: “The complaint is not and have one portion stricken out, leaving the

lengthy, being only a little over five pages fragmentary and incomplete-and therefore

of typewritten matter, and counsel especially irrelevant and meaningless-remainder to

asks this court to read the amended comstand as the answer in the case.

Such a pro

plaint and demurrer, as well as this abstract ceeding is a perversion of the uses for which

of the record;" and, after giving us in the a motion is designed. The question which

abstract two printed pages of synopsis of it counsel seeks to raise, and of which he asks

or commentary in regard to it, say: "The a determination, cannot be raised by that foregoing is a succinct statement of the facts method. To bring any question before us for

stated in the amended complaint.” As the adjudication, the prescribed practice must be

sufficiency of the complaint was the only followed. The judgment will be reversed.

question decided in the lower court, and to Reversed.

be reviewed here, it would have been more satisfactory, and in harmony with the prac

tice, to have printed the complaint in the (5 Colo. App. 545)

abstract, and his conclusions in regard to it TARABINO v. NICOLI et al.

in his printed argument. No decision can (Court of Appeals of Colorado. Feb. 11, 1895.)

be intelligible without giving a full copy of

the complaint. It is as follows: "The plainPARTNERSHIP ACCOUNTS – BILL FOR SETTLEMENT -WITHDRAWAL OF PARTNER-EFFECT ON FIRM

tiff, by way of amending his complaint, al-FIRM ASSETS - BUILDINGS ON PUBLIC LAND- leges: (1) That on or about the 1st day of PARTITION.

September, A. D. 1889, the plaintiff and de1. A complaint alleged that plaintiff and fendants formed a partnership for the purdefendants had been partners; that plaintiff

pose of conducting a mercantile business unwithdrew from the firm, and that an estimate of the value of the buildings and improvements,

der the name and style of R. Nicoli; plaintiff and of the assets and liabilities, was then made. and G. Aiollo, the defendant of that name, Defendants, by agreement, took the stock in being silent partners in said firm. (2) That, trade and bills receivable, assumed the firm debts, and were to pay over to plaintiff a cer

under and pursuant to the agreement formtain sum out of a sale of goods, and one-third of

ing said copartnership, the parties hereto all money collected on bills receivable, and and plaintiff were each to contribute one

1

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