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so; that she gave him the authority, and ing the execution of the paper. Upon these he sold for enough to pay his mortgage, the the jury was instructed, without being reattachment, and costs, and $42.09 on the quired to find whether or not the paper was note in suit; that the note was not secured fraud upon the defendant. The jury by mortgage or otherwise, and that there re- should have been instructed that, if no fraud mained $117.91 and interest due upon the was practiced upon the defendant by the note. By an amendment to the answer it plaintiff in obtaining the writing, and she was alleged that plaintiff asked McCloskey knew at the time of the execution of it that for authority to sell, agreeing, if it was it contained the $500 limit, then that all given, he would sell the property for enough evidence in regard to the cost or value of to pay her note for $375, four other notes the property and of the statements of plainamounting to $361, the $150 note in suit, the tiff preceding the execution of the paper amount of the attachment, and to pay MC- should be disregarded. If it was void by Closkey from $65 to $100; that plaintiff reason of fraud, then resort could be had to presented a memorandum in writing, which the conversations preceding it, not otherhe represented only contained authority to wise; and it would control. The evidence sell the property on the terms above stated; in regard to what transpired previous to the that it was dark at the time, and no light signing, and the circumstances attending the accessible for her to read it; that she relied making and signing of the instrument, is upon plaintiff's statement, and signed the very contradictory. Defendant, in her teswriting; that she did not know the contents timony, when asked in regard to the agreeof the writing until the replication was ment plaintiff read to her, said that he filed; that the memorandum, as signed by agreed to pay her $65 or $100 after indebther, gave the plaintiff authority to sell to edness was paid off, and that it was in the Powers for $500, provided such amount paid agreement to sell it to Powers for $500 or attachment, the chattel mortgage, and costs more, and pay off the indebtedness; and due the plaintiff, and, if the $500 did not that, when she signed the paper, he told her pay those claims, the price was to be suf- he would do the best he could for her. And ficient to pay them, and any balance re- again, on cross-examination, in answer to maining turned over to her; that, therefore, the question whether at the time she signed the writing was null. Replication denying the agreement she understood she was givallegations in the amendments. A trial was ing him authority to sell at $500, she said had to a jury, resulting in a verdict for de- that he was to sell the gallery for $500 or fendant McCloskey against the plaintiff for more; enough to pay off the indebtedness. $65 and costs. The motion for a new trial Here are two admissions that she knew the was overruled upon McCloskey remitting the contents of the paper, and of the minimum $65, which was done, and a judgment for limit of $500. Consequently her right to recosts entered against the plaintiff, and an cover must have been based, not upon the appeal to this court.

contract, but upon the promise to get more

if he could, or enough to pay the debts, and Betts & ites, for appellant. C. H. Coan,

have a balance of $65 or $100. After these for appellees.

admissions of knowledge of the contents of

the paper, the jury should have been inREED, J. (after stating the facts). It is structed that the contract controlled, and all proper and charitable to presume that this evidence in regard to alleged extraneous is one of those unfortunate cases where, promises and statements must be disregardfrom want of business ability, or as a re- ed. Failing to so instruct, it is evident that sult of a misunderstanding of the items em- the jury regarded the matter not embraced braced in plaintiff's proposition, defendant in the contract as controlling, and a proper was honestly misled; otherwise she

basis for a judgment. chargeable with great dishonesty. By the I am at a loss to determine from the record provisions of the mortgage, appellant had upon what theory the defense and cross the right to take possession of the property, complaint was based. The agency and auand sell at public or private sale, in case an thority to sell having been established by attachment was levied upon the goods. They all the evidence, and the minimum price had been attached, and he had taken the fixed in the written authority admitted by possession. The writing was an authoriza- McCloskey, and the sale having been made tion to sell at a price of $500. The making to a third party, and there being no evidence and execution of the writing is admitted. or claim that the agent received more than It is sought to be avoided on the ground of he accounted for, or that, by collusion with ignorance of its contents and fraud of the the purchaser, he was to receive some conplaintiff in procuring it. The writing ap- sideration or benefit from the sale, or that pears to have been entirely ignored upon the some other person offered a greater price, trial. The jury were not instructed in re- and the minimum fixed by the owner havgard to it, nor required to find upon its va- ing been received and accounted for, no lidity, which was the only important issue legal cause of action is presented, nor dein the case. The trial appears to have pro- fense against the note shown, by any matceeded upon alleged oral statements preced- ters connected with the agency or sale. Had

v.39p.no.1-28

was

the agent sold for more than the designated $300, and fraudulently appropriated the surplus, the excess unaccounted for could have been recovered. Had he converted the goods to his own use, or collusively sold them so as to receive benefits himself, he could have been made responsible for their market val. ue. But, as no such conditions existed, and no fraud was shown or attempted, there was no legal set-off or counterclaim; and evidence of the value of the goods, as testified to by the defendant, was inadmissible, and must have been prejudicial to the appellant. A principal cannot collect from an agent, where no fraud or violation of instructions is shown, the difference between what the goods actually sold for and what the owner thought them to be worth. The instruction of the court, and the theory of the law upon which it was tried, are so at variance with our views of the law, the judgment will be reversed, and cause remanded for a new trial. Reversed.

(5 Colo. App. 493) ORMAN et al. v. CRYSTAL RIVER RY. CO.

et al. (Court of Appeals of Colorado. Feb. 11, 1895.) APPEALABLE JUDGMENT ENFORCEMENT OF MECHANIC'S LIEN-CHANGE IN LAW-EFFECT

ON SUBSEQUENT PROCEEDINGS. 1. Where several actions to enforcemechanics' liens against the same defendant are consolidated, a judgment sustaining a demurrer to the complaint of one of the plaintiffs is as to him a “final judgment," and appealable.

2. Where, pending the work, and before the right to a mechanic's lien has accrued, the law in regard to the enforcement of liens is changed, the later law must be followed in proceedings to perfect and to enforce the lien.

Appeal from district court, Pitkin county.

Action by Orman & Crook against the Crystal River Railway Company and others to foreclose a lien. From a judgment dismissing the complaint, plaintiffs appeal. Judgment affirmed, but, on stipulation of the parties, the case was reversed and remanded, to enable plaintiffs to prosecute their suit to judgment for whatever sum could be established as due from the railroad company.

Waldron & Devine, for appellants. David C. Beaman, for appellees.

contract and its breach, and, as to the other defendants, that they had or claimed some interest as lien claimants against the railroad company. These other defendants, the Morey Mercantile Company and Jones & Seeley, likewise brought suits in the Pitkin county district court to enforce the liens which they had initiated. After these three different suits were begun, the court made an order consolidating the cases. The railroad company demurred to Orman & Crook's complaint, on the ground that Orman & Crook had not shown they were lien claimants having the right of foreclosure. There were a good many irregularities in the proceedings below, and some which inhere in the judgment; but, by stipulation, the litigants have relieved us of the necessity to dispose of these matters, and the right to determine the sufficiency of the complaint is left open.

It is not essential to our conclusion nor to its apprehension to do more than state what the allegations are with reference to two or three of the essential facts. The plaintiffs alleged that, pursuant to the contract, they constructed the grade and roadbed between two dates,-the 3d of September, 1892, and the 15th of August, 1893. They further stated that, according to the terms of the contract, the sum which they sought to recover became due and payable on the 15th day of August, 1893, and thereafter remained unpaid. In another portion of the pleading, they averred they began the work and commenced to furnish the materials in September and October, 1892, and thereafter continuously prosecuted the work of constructing the road and roadbed until the 15th day of August, 1893. These are the only particulars which must be stated. In other respects the pleading is probably sufficient to compel an issue of fact, and to entitle the plaintiffs to a trial. Notwithstanding these facts, the contractors did not file their statement of lien until October, nor institute their suit for foreclosure until the following March. Unless, under these circumstances, the plaintiffs have the right to foreclose their lien, they were not entitled to anything but a money judgment against the company for whatever sum they might prove to be due. For many years there have been lien stat. utes in this state. It is conceded that, under the statutes in force prior to 1893, what the contractors did was enough to give them a lien if otherwise they could prove their case, and, under those acts, they commenced their suit in apt time to entitle them to proceed to judgment. The appellees, however, insist that the lien law which was approved April 3, 1893, and went into effect on the 2d day of July, 1893, was not observed by the contractors. The act of 1893 differs from the former statute in respect to the time in which the lien must be filed, and to the time for the commencement of the suit to enforce it. Un. der the complaint, we must assume the lien was filed in apt time, even under the act of 1893, because that pleading charges the work

BISSELL, P. J. Orman & Crook contracted with the Crystal River Railroad Company, in September, 1892, to construct certain parts of the road. When the work was done, there remained due a little upward of $30,000 out of the total contract price of some $268.000 which the company had agreed to pay. The company failed to pay, and on the 4th of October, 1893, the contractors filed a lien statement with the clerk and recorder of the counties through which the road ran. On the 9th of March, 1894, they brought this suit to enforce the lien. They named the railroad company and divers other parties as defendants, alleging as to the company, the

to have been continuously prosecuted up to the 15th of August, and to have been finished on that day when the money earned became due. This matter, then, will not be considered.

The troublesome question springs from the date when the suit was begun. Under the former statute, foreclosure proceedings could be instituted at any time within six months after the lien was filed, but, under the act of 1893, certain other things must precede the commencement of the suit, and the action itself must be begun within four months after the completion of the work. There is one other consideration which must be noticed before proceeding to state the general proposition on which the case turns. The act of 1893 contained a proviso that the repeal of the antecedent acts should not be construed to affect any existing right as to remedy or otherwise, or to abate any suit which might have been instituted to enforce a lien acquired under the preceding enactments. After the several suits were consolidated, the demurrer was heard; and the court dismissed the complaint. Orman & Crook prosecute this appeal from that judgment. Prior to the argument, the appellees moved to dismiss the appeal, on the ground that the judgment was not final. We declined to dismiss it, but left the question open for discussion on the hearing, and it has been argued. This brief statement serves to indicate very clearly the only two questions which remain to be determined. Disposing of them in their inverse order, we conclude that the right of appeal inured to Orman & Crook when the court entered judgment on the demurrer. We should undoubtedly be somewhat embarrassed by the judgment entry interpreted by the aid of the stipulation which the parties have filed, but they have agreed that the court shall disregard it when considering the motion.

The naked question is thus presented whether when a lien claimant brings his suit, and it is afterwards, under the statute, consolidated with other actions for the purposes of a final adjudication, and the principal defendant files a demurrer to the complaint, which is held well laid, and the action is dismissed, with costs, there comes to him a right of appeal. It has many times been decided that a final judgment must precede an appeal. This whole question was considered in the case of Hagerman v. Moore, 2 Colo. App. 83, 29 Pac. 1014. This decision, however, does not at all conflict with our present conclusion. That was a suit brought against several parties who were alleged to be jointly interested. The court dismissed as to one of the tenants in common for the failure to prosecute, leaving the case to stand undetermined as to the other parties. It was concluded with reference to that order of dismissal that there was no such final determination of the suit between the parties as to give the right of appeal. There is a broad distinction between that case and the present. In this suit

the railroad company was the only defendant against whom a money judgment was asked. The other lien claimants having begun their independent suits were brought into the case by the order of consolidation. The only substantial question between them and Orman & Crook was as to priority of lien. In all material particulars the suit was an independent one between Orman & Crook and the railroad company.

If Orman & Crook were without a lien, none of the other claimants who had begun their suits were interested in the result of the action. When the court dismissed Orman & Crook's complaint, their suit was disposed of and determined. The judgment was final as between Orman & Crook and the railroad company, and it was clearly a "final judgment,” according to the definition of that term to be deduced from the various text books and decisions. We are aware that this question has been otherwise decided, and it has sometimes been concluded even in a case of this sort that the party who has been sent out of court must wait the ultimate determination of the claims of all the litigants, and possibly see the money resulting from the sale of the property distributed and lost, before his right to appeal springs up. We do not think this accords with the decision of our supreme court, nor with the general rule which ought to prevail in such cases. The supreme court has decided in case of an intervention that, when judgment has resulted against the intervener, he may bring his case up, notwithstanding there has been no final judgment in the main case. Henry v. Insurance Co., 16 Colo. 179, 26 Pac. 318. This rule likewise harmonizes with the proceedings in other cases of a somewnat analogous character. In prize matters, where there are various claimants to a distributive share of the proceeds, the supreme court of the United States has always held that, wherever judgment is rendered against one libeler disposing of his claim adversely to the contention, there immediately comes to him the right to obtain a review of the judgment. The same rule prevails in equity suits where a cross bill has been disposed of by a final judgment, even though the main controversy remains undetermined. Withenbury v. U. S., 5 Wall. 819; Nichol v. Dunn, 25 Ark. 129; Black, Judgm. $ 21; Kiefer v. Kiefer (Colo. App.) 36 Pac. 621. We conclude the appeal should not be dismissed.

This leaves the main inquiry whether Orman & Crook began their suit in apt time to enforce their lien. According to the averments of the complaint, the work was not completed until the 15th of August, nor was the money due from the railroad company until the work was done. We regard this as a controlling circumstance in the determination of the question. The whole difficulty seems to spring from the uiscussion whicb has occurred in many cases concerning the time at which the lien is sometimes said to tion fell due. Under these circumstances, we conclude the lien should have been filed under the provisions of the act of 1893, and the suit begun within the time limited by that act. Hanes v. Wadey, 73 Mich. 178, 41 N. W. 222; Templeton y. Horne, 82 Ill. 491; Barton v. Steinmitz, 37 Ill. App. 141; Bardwell v. Mann, 46 Minn. 285, 48 N. W. 1120; Tell v. Woodruff (Minn.) 47 N. W. 262; Garland v. Irrigation Co., 9 Utah, 350, 34 Pac. 368; Weaver v. Sells, 10 Kan. 609. The statement shows the appellants failed to com. mence their suit in apt time, and it must therefore be adjudged that they lost the right to enforce their lien.

According to the stipulation which the parties have filed in this court, the judgment of the court below must be reversed, at the cost of Orman & Crook, and the case sent back, with directions to the court below to permit them to prosecute their suit to judgment for whatever sum they may establish to be due from the railroad company. Reversed.

accrue, and respecting the application of the doctrine of relation as between different lien claimants and creditors of the defendant. It is pretty universally conceded that, under most of the statutes, if the claimant establishes his right to a lien, it will be held to relate back to the time at which he began his work. This rule, however, has nothing to do with the remedy which the statutes give. A failure to observe this distinction has led to a little discrepancy in the decisions on this subject. Nearly all of them agree that several things must concur to originate a lien. With the contract we have no concern; but we must consider the performance of the work and the failure of the other party to pay the sum due the contractor under his convention. It is manifest that Orman & Crook could have had no right to a lien before they finished their work unless there was something in the contract which entitled them to antecedent payments which had not been made according to the agreement. Whether this would give them a right we need not weigh, because it is not involved. The railroad company appear to have met all their engagements maturing prior to the time the work was completed, to wit, August 15, 1893. The plaintiffs aver the work was continuously prosecuted until that time, and on that date the sum of about $31,000 became due. Under these circumstances, we must conclude the parties were not entitled to file a lien as against the property until after August 15th.

This leaves the question whether the repeal of one lien statute, and the re-enactment of another, containing provisions for the enforcement of lien rights, in any wise affects the remedy given to the lien claimants. It is insisted that the saving clause preserves to the contractors the right to proceed under either statute. They concede, for it cannot well be disputed, that, so far as concerns the remedy given for the redress of wrongs of this description, the legislature is clothed with full power. So long as what the lawmaking body may do does not deprive the claimant of the means to enforce the lien which he has partially or wholly acquired under the preceding act, their legislation is not open to question. It is quite possible, if the work had been finished prior to the time the act of 1893 went into operation, and a right of action had accrued thereunder, a different question would have been presented. The present record does not raise it in this aspect. Regardless of the importance of the doctrine of relation as between conflicting claimants, which might become important here if Orman & Crook had succeeded in establishing their lien, it is manifest that, as between them and the railroad company, their right to the lien did not arise until the railroad company had defaulted in their payments. The plaintiff charges that no such default was made until the 15th of August, when the sum for which they bring this ac

(106 Cal. 137) ALLEN et al. v. ALLEN et al. (No. 15,716.) (Supreme Court of California. Feb. 23, 1895.)

RES JUDICATA. A judgment in an action by a mortgagor to redeem from an absolute deed as a mort. gage, in which it was adjudged that the mortgagor's equity of redemption was barred by limitations, is a bar, in ejectment by the mortgagee to recover possession of the land, to defend. ant's right to set up such equity.

In bank. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Ejectment by Charles F. Allen and others against H. D. C. Allen and others. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

E. W. Wilson and J. N. Gillett, for appellants. Buck & Cutler and Chamberlin & Wheeler, for respondents.

HENSHAW, J. This is an action of ejectment. The complaint is in the usual form. The answer presents a special defense in equity, averring that the defendant H. D. C. Allen, being the owner of the lands in controversy, caused a transfer and conveyance of them to be made to plaintiffs as security for a debt; that plaintiffs received the transfer and conveyance, and the land and premises thereby conveyed, and thereupon agreed to hold, and ever since have held, and now continue to hold, the same as security. The same facts are likewise pleaded by cross complaint. Defendants ask that an accounting be had, and that they be allowed to redeem the land upon payment of any amount found due. The appeal is from the judgment alone.

The facts of this precise transaction will be found in Allen v. Allen, 95 Cal. 184, 30 Pac. 213, where this defendant (there plaintiff) sought to redeem against these plaintiffs (there defendants) the same land from

lien of the same mortgage. By that deci- is made by it; (2) that, if an appropriation sion it was held that, under the transfer and is made, that appropriation is void for unconveyances to plaintiffs herein, they ac- certainty in amount. quired the legal title to the property, leaving It is provided by section 22, art. 4, of the in defendants a mere equity of redemption; constitution that “no money shall be drawn that the parties are deemed to have con- from the treasury but in consequence of aptracted in view of the rule of interpretation propriations made by law, and upon warof such instruments expressed in Hughes v. rants duly drawn thereon by the controller." Davis, 40 Cal. 117, and Espinosa v. Gregory, This inhibition is supplemented by subdiId. 58; and that, the debt to secure which vision 17, § 433, Pol. Code: “No warrant the deed was made being barred, the right must be drawn unless authorized by law, to redeem was also barred. The trial court and upon an unexhausted, specific appropriafound that the judgment in Allen v. Allen, tion provided by law to meet the same. supra, was a bar to the defenses and equi- Every warrant must be drawn upon the fund ties pleaded in defendants' answer and cross out of which it is payable and specify the complaints; and we think it was right in so services for which it is drawn, when the finding. The judgment upon the former ap- liability accrued, and the specific appropriapeal is determinative of the rights of either tion applicable to the payment thereof." party to this transaction, and operates as The constitution of 1819 (article 4, § 23) proan estoppel. While the plaintiffs cannot vided: "No money shall be drawn from the foreclose, defendants cannot redeem. Wher- treasury but in consequence of appropriaever the right to possession of the land may tions made by law." By act of the legislahave been before the time for redemption ture, in 1854 the duties of the controller were had expired, upon the failure of defendants expressed in terms substantially the same to redeem within the statutory period the as those'now found in subdivision 17 of secright vested absolutely in plaintiffs, and tion 433 of the Political Code, above quoted. their title, freed from defendants' equities, St. 1854, p. 29. The laws of the state rebecame full and complete. The judgment garding appropriations have thus been uniappealed from is affirmed.

form from a very early day, and, if any con

trariety of opinion be found in the adjudicatWe concur: TEMPLE, J.; GAROUTTE,

ed cases, it cannot be explained upon the J.; MCFARLAND, J.; HARRISON, J.; VAN ground of changed provisions in the law. FLEET, J.

One of the earliest cases upon the question of appropriation is that of McCauley v.

Brooks, 16 Cal. 28. The act there in ques(106 Cal. 113) INGRAM V. COLGAN, Controller.

tion provided that the sum of $15,000 per

(No. 18,372.)

month, or a sum less than that, in accord

ance with the contract to be entered into, (Supreme Court of California. Feb. 23, 1895.)

“is hereby appropriated out of any money APPROPRIATION-SUFFICIENCY.

in the treasury not otherwise appropriated." St. 1891, p. 280, providing that any person who shall kill a coyote shall be paid a boun

It was claimed that no specific appropriaty of five dollars out of the general fund in the tion of funds in the treasury had been made. state treasury, does not make an appropriation The opinion by Field, C. J., is an elaborate for such bounties, as it fails to provide for the

exposition of the law, and in it he says: amount to be used therefor.

"To an appropriation, within the meaning of In bank. Appeal from superior court, Sac

the constitution, nothing more is requisite ramento county; A. P. Catlin, Judge.

than a designation of the amount and the Application by J. W. Ingram for writ of

fund out of which it shall be paid. It is mandamus compelling E. P. Colgan, a state

not essential to its validity that funds to controller, to pay a bounty to petitioner for

meet the same should be at the time in killing coyotes. The writ was granted, and

the treasury. As a matter of fact, there defendant appeals. Reversed.

have seldom been in the treasury the necesAttorney General Hart, for appellant. sary funds to meet the several amounts apFreeman & Bates, for respondent.

propriated under the general appropriation

acts of each year. The appropriation is HENSHAW, J. Upon joint petition of i1p- made in anticipation of the receipt of the pellant and respondent (38 Pac. 366), this yearly revenues. It constitutes, indeed, the cause was ordered to be heard in bank for authority of the controller to draw his warthe determination of the single question rants, and of the treasurer, when in funds, whether or not the act under consideration to pay the same, and that is all. When ("An act fixing a bounty on coyote scalps”; the constitution, therefore, says that no monSt. 1891, p. 280) made appropriation for the ey shall be drawn from the treasury but payment of claims arising under it. The

in consequence of appropriations made by opinion heretofore rendered, filed October 30, law, it only means that no moneys shall be 1894 (38 Pac. 315), stands confirmed, and drawn except in pursuance of law; and what is now added is to be construed with it. when the act of April 13, 1854, provides

The objections raised to the sufficiency of that no warrants shall be drawn except there le act are (1) that no appropriation at all be an unexhausted, specific appropriation to

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