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None of the others purchased any of the stock, and, except the sum of $800 realized from the purchases mentioned, the note was unpaid. After the default of Willoughby | the plaintiffs tendered to the defendant a certificate for 400 shares of the stock, and demanded compliance with the agreement, which the defendant refused. This action was brought to recover the sum of $200 as damages for breach of the contract. The grounds of demurrer were: First, that the complaint did not state facts sufficient to constitute a cause of action; second, that there was a defect of parties defendant; and, third, that there was no consideration for the agreement.

By the terms of the Code, joint agreements are several, and suit may be brought against any of the parties liable or against all of them; so that in bringing this action agains the defendant alone the plaintiffs exercised a right given them by the statute, and there was no defect of parties defendant. We shall have occasion to notice this Code provision again. The agreement was executed for the purpose of being used as collateral security for the note. It, together with the certificate of stock, was attached to the note, and, with the note, delivered to the plaintiffs before the money was loaned. The loan to Willoughby was the consideration for the agreement, and the third ground of demurrer is therefore not well laid.

A more serious question is presented by the first ground of demurrer, in that it involves the sufficiency of the complaint. The action against the defendant is upon the agreement set out, and we must consider whether such an agreement is capable of enforcement. The certificate of stock which was deposited with the plaintiffs as security for the debt was a pledge. In the absence of special agreement, or of any waiver of the pledgor's rights, a pledge, if it consists of property bought and sold in the market, is enforced by sale at public auction, of the time and place of which reasonable notice must be given to the pledgor. In this case, however, Willoughby, by procuring purchasers in advance, at a fixed price, waived his right to that method of enforcement, and consented, in case of his own default, to a sale of the stock in accordance with the terms of the agreement. By the averments of the complaint, the parties signing the instrument were not in any sense sureties. They did not agree to pay the debt. They simply agreed to become purchasers, each of a certain portion of the thing pledged, in case an enforcement of the pledge should become necessary. They did not agree that the amount due should be divided into 16 equal parts, and that each should purchase a sufficient amount of the stock at the price named to pay one part. Their contract was that they would purchase 400 shares, no more and no less, of the stock pledged, at 50 cents per share. This contract, and not the parties to

it, was received as security. A purchase involves an acquisition. The purchaser is entitled to the thing purchased. There are two parties to a purchase,-a vendor and a vendee, and, upon the payment by the vendee to the vendor of the purchase price, an obligation rests upon the latter to transfer to the former the subject of the sale. An agreement to purchase implies, even if it does not express, an agreement to deliver the thing purchased, so that, if the purchaser can be held to his purchase, the seller can be held to the delivery of that which was purchased. Accordingly the parties to this agreement, upon payment for their stock, were entitled to have it transferred to them, and the plaintiffs could not enforce payment for it without making it over to them. The plaintiffs recognized this necessity, for they aver a tender of the stock to the defendant when the money was demanded. The contract was unilateral, but the plaintiffs, by seeking its enforcement against the defendant, have made it mutual to the extent of assuming as to him the obligation of vendors. The agreement is, in form, joint. It is the agreement of all that each shall purchase stock. Upon default by one all would become liable; and, but for the Code provision we have mentioned, any suit upon the agreement must be brought against all its makers. That provision is as follows: "Sec. 13. Persons jointly or severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff." Sess. Laws 1887, p. 99. This section does not purport in any wise to alter the obligations which parties have assumed in their contracts. It does not make a contract valid which would otherwise be invalid. It operates merely as an enlargement of the remedy upon the contract, permitting suit to be brought against any of the parties liable or against all, at the plaintiff's pleasure. But where parties contract jointly there must be a joint liability in order that there may be a several liability. If a joint agreement is invalid or incapable of enforcement against all of its makers, it is invalid and incapable of enforcement against any one or more of them. In this case 16 men agreed to purchase 400 shares each, making a total of 6,400 shares, to come out of one certificate-No. 44-for 5,000 shares. As shown by the complaint, this is the exact contract which the parties made, and it is not in our power to vary it. they had been jointly sued, the plaintiffs must have been ready to deliver to them 6,400 shares; but there were only 5,000 shares from which they could be taken. Such a contract is inherently absurd. The parties could not purchase, and the plaintiffs could not deliver, 6,400 shares from 5,000 shares. Mr. Bishop says: "A mutual undertaking between parties to do what both know to be

If

Impossible is vain and idle, lacking the elements of a contract, and no suit can be maintained upon it." Bish. Cont. § 579. See, also Chit. Cont. (11th Am. Ed.) 64, note; Faulkner v. Lowe, 2 Exch. 595; Gilmer v. Gilmer, 42 Ala. 23. If the agreement had by its terms been several, a recovery could have been had against each of the parties as long as the stock remained unexhausted, because his agreement was complete in itself, and independent of that of the others; but, the contract being joint, and, as a joint contract, being upon its face impossible of performance, it is void, and no action is maintainable upon it against all or any of the parties to it. It is the case made by the complaint that is here passed upon. Whether in some other form of action, or under averments which are wanting in this complaint, the plaintiffs may not have a remedy against the signers of the instrument, it is not in order now to express an opinion. The judgment is affirmed. Affirmed.

(5 Colo. App. 515)

ARAPAHOE INV. CO. v. PLATT.1 (Court of Appeals of Colorado. Feb. 11, 1895.) CORPORATIONS-LIABILITY FOR CONTRACT OF PROMOTER —ADOPTION OF CONTRACT-EVIDENCE

ATTORNEY-RIGHT TO COMPENSATION.

1. A contract made by one engaged in the formation of a corporation, and who afterwards became a director thereof, by which one was induced to subscribe for stock, is not binding on the corporation, unless adopted by it.

The

2. In an action against a corporation for services as attorney, it appeared that, before defendant's incorporation, S., who organized it, told plaintiff that if he would subscribe to the stock, and devote his time and services to the company, he would be elected a director thereof, and appointed its counsel on a salary. company was formed, and both S. and plaintiff were elected directors. Plaintiff paid his subscription to its stock, and entered its office, and placed his whole time at the disposal of the company, doing what legal business was required of him. Some of the other directors knew of the agreement which S. made with plaintiff, and all of them saw plaintiff occupying defendant's office and accepted his services. A year after he entered the oilice the agreement made by S. was laid before a meeting of the directors, and the statement by one of the directors that they would vote plaintiff a salary met with no dissent. Plaintiff continued in the service of the company for some time longer without any objection, and received two payments for services. Held, that a finding that defendant adopted the agreement made by S. with plaintiff was justified.

3. In such case, the value of plaintiff's services should not be predicated on the actual services rendered by him, but by the time during which his services were at defendant's disposal.

4. An agreement by a corporation to pay its counsel a salary, as soon as the company is financially able, entitles the counsel to salary from the time he enters its employ, and not from the time the company becomes financially able to do so.

Appeal from district court, Arapahoe county.

Action by Franklin Platt against the Arap

1 Rehearing denied March 11, 1895.

ahoe Investment Company. From a judg ment for plaintiff, defendant appeals. Affirmed.

Chas. M. Bice, for appellant. W. S. Decker and Wm. Knapp, for appellee.

THOMSON, J. The plaintiff, Platt, brought this action to recover the reasonable value of his time and services in behalf of the defendant, the Arapahoe Investment Company, from September 1, 1890, to October 1, 1891, less the sum of $900, paid to him by the defendant. There was evidence tending to establish the following facts: In May, 1890, the plaintiff, who then lived in the East, being in Denver for the purpose of investing some money in city real estate, met a Mr. Sage, who advised him to put his money into a company which he (Mr. Sage) was then endeavoring to organize. Sage proposed to him that if he would invest his money in stock of the proposed company, and come to Denver, and devote his time and services to the company, he should be made a director and appointed its counsel; and, as soon as the company was on its feet and able to pay salaries, a salary should be paid to him for his services. These services were to be rendered in the legal business of the company, in selling real estate for it, and in doing such other business as it might require. The proposition was accepted by the plaintiff, who then went back to his home, settled up his affairs there, and returned, reaching Denver about the middle of August, 1890. The defendant company, which was the identical company proposed by Mr. Sage, had been incorporated in the preceding June, the plaintiff having been made a director; and on the 1st of September, 1890, he put $2,500 into the company, and entered into its service. The amount of salary which he should receive was not agreed upon between himself and Mr. Sage. On the 1st of the following October, the directors of the company elected him its counsel for the ensuing year. He endeavored from time to time to have the amount of his salary fixed by the board, but did not succeed. He devoted his time to the company, performing such services as were required of him, although it had very little business for him to do. The condition of the company was not flourishing until August, 1891, when a wave of prosperity struck it, and it found considerable money in its treasury. The directors then determined that the company was in a condition to pay salaries. A committee was accordingly appointed by the board to adjust the salaries to be paid, which thereupon fixed the amounts which should be received by the president, the vice presi dent, and treasurer, and the secretary, to be paid from the 1st day of the preceding December. The committee reported that it was unable to agree upon the amount which should be paid to the plaintiff. After making an unsuccessful effort to have his own

salary provided for, he threatened the board that he would sue the company if some action was not taken in his behalf, and was answered by one of the directors that he should have a salary, that they would vote him one. There was no disapproval of the remark by the board or any of its members. Mr. Sage, with whom the plaintiff had contracted, was a member of the board. Mr. Woodman, another director, had personal knowledge of the contract. At the meeting in August, upon the request of Mr. Bullock, who was also a director, and who remarked that he was not fully informed in the matter, the plaintiff made a statement of the facts to the board. The board adjourned without taking any action upon the question. The plaintiff had, previous to this time, occupied the company's office, and, after the meeting, continued in its office, until the 1st of the following October, when he left. In August, about the time of this meeting, the company paid the plaintiff $400, and a month afterwards $500 more. These two sums were all that he ever received.

The contract under which the plaintiff claims was made with Mr. Sage, who at the time was engaged in promoting the organization of the defendant company. It was a contract which, by its terms, was to be performed by the company after it should be incorporated. Mr. Sage was not, and could not be, its agent, because it had not yet come into existence. It was in virtue of his efforts, and through his instrumentality, that it was afterwards organized; but prior to its organization, and at the time of the making of the contract, he was merely a promoter. The company which he assisted in creating was not bound by any of his precedent acts, except, as by adopting them, it made them its own. No liability attached to it on account of the contract between the plaintiff and Mr. Sage in virtue of the contract itself, and no such liability could arise unless it was voluntarily assumed by the adoption of the contract on the part of the company. Water Co. v. Adams (Colo. App.) 37 Pac. 42. But it is not necessary that the act of adoption should be formal. Whatever would amount to a ratification of the unauthorized acts of an agent would be sufficient evidence of an adoption of the contracts of a promoter. 1 Beach, Priv. Corp. §§ 197, 198. In Water Co. v. Adams, supra, we held that certain acts of the officers of the company in reference to a contract made by its promoter, done with knowledge of its existence and terms, were sufficient to justify a finding that the contract had been adopted by the company.

There is very little controversy over the facts of this case, and, in so far as it may be said that they are disputed, they are set at rest by the verdict of the jury, which leaves them as we have stated them. In June, while the plaintiff was absent in the East, the defendant was incorporated, and the plaintiff was made a director. In Octo

ber he was elected counsel of the defendant company for a year. In September, after his return, he entered into its office, and there remained, ready to do whatever might be required of him. The defendant availed itself of his services in so far as it had business to do. Some of the directors knew exactly the agreement under which he was serving the company, and the others must necessarily have known that he was there, occupying the company's office, in pursuance of some arrangement, the nature of which was easy of ascertainment. They were accepting his services, and, if they deemed it important to know the details of his employment, they should have inquired. Afterwards, in August, 1891, while they were assembled as a board, the facts were laid before them fully, and they then knew all that the plaintiff himself knew. No suggestion looking to a disaffirmance of the contract between him and Sage was made. On the contrary, after he had given them the particulars of his contract, a statement by one of their number that the board would vote him a salary met with no dissent from any director. He continued in the service of the company for some time afterwards, without objection from any source. He received two sums of money, aggregating $900; and, if the payments were not made in pursuance of the contract, they are totally unexplained. Here is a succession of facts which are explicable only upon the hypothesis that it was the intention of the company to carry out the contract made by Mr. Sage. The adoption of the contract is a legitimate, if not a necessary, inference from them, and they are amply sufficient to sustain the verdict of the jury in the case. It does not matter that the company had not sufficient business to keep the plaintiff employed. That was not his fault. The contract exacted of him the devotion of his entire time to the company. He was thus prevented from earning anything elsewhere, and it was the value of the time which he expended, rather than the value of any particular services rendered, by which his right of recovery should be measured. This suit is for the value of his time in connection with his services. He worked under a contract which was complete except in the matter of fixing the amount of his compensation, so that evidence of value was necessary to ascertain what that should be. Proof of the contract with Sage, and of the proceedings and occurrences subsequent to the incorporation of the defendant, was necessary to the establishment of his claim, and was properly allowed. We find upon the face of the record no error in the admission or rejection of evidence. The complaint does not recite the contract, and it is not requisite that it should. Under its allegations, proof of the contract was necessary to show the character of the plaintiff's claim, and as introductory to evidence of the value of his time and services.

ceding year. His engagement commenced, and he entered upon his duties, two months earlier. The directors failed to vote him a salary, and he certainly was not bound by their action in making the other salaries commence on December 1st. If he was entitled to any compensation at all,-and he certainly was, he was entitled to compensation for the entire time he was in the defendant's employ. To our minds this record is, in a marked degree, free from error throughout, and the judgment must be affirmed. Affirmed.

(5 Colo. App. 559) LIVEZEY et al. v. PUEBLO HARDWARE CO.1

The defendant requested four instructions, all of which were refused except the third. The first told the jury that the plaintiff was not entitled to recover on account of any services rendered by him as director of the defendant. It is true that, in the absence of express contract or some by-law, services as director of a corporation are presumed to be rendered gratuitously; but in view of the fact that, by the terms of this contract, the plaintiff was to give his entire time to the company, doing whatever it required of him, it seems to us that the instruction would have been misleading, or, at least, confusing. However, the first instruction given embraced substantially what the defendant asked, so that discussion of the rejected instruction would result in nothing useful. The second (Court of Appeals of Colorado. Feb. 11, 1895.) contains the proposition that the plaintiff was entitled to compensation only for services actually rendered. Under the facts of this case, the giving of such an instruction would have been gross error. The fourth directed the jury not to consider the agreement with Sage, and informed them that the defendant would be liable only upon such contract as it made itself with the plaintiff. As the only agreement that ever was made was made with Sage, and as the only liability of the defendant arises from its adoption of that identical contract, the fallacy contained in this proposed instruction is obvious.

The instructions given seem to us to be remarkably clear, fair, and accurate. It is objected to the first that it submitted to the jury the question whether the plaintiff was employed by the defendant to attend to its legal business, sell real estate, and do whatever else was requisite concerning its business, and to give his exclusive time and attention to such business. It is the real-estate clause to which exception is taken. There was some evidence that the company at one time proposed that sales of real estate which the plaintiff might make should be upon commission, but there never was any agreement to that effect. He did not assent to the proposition. The original contract with Sage was never changed in any particular, and that included the selling of real estate. Fault is found with the second instruction given because it directed the jury that, if they should find that the plaintiff was entitled to recover, his compensation should be allowed from the time he commenced his engagement with the defendant until the time when he left its employment. This seems to us to be right. By the terms of the contract, the plaintiff was to have a salary, but it was not to be paid to him until the company was financially able to pay. Without any qualifying or restrictive words, this would mean that, when it reached a state of financial ability, he would be entitled to receive what he had already earned, as well as what might accrue in future. The company had become able to pay, and voted certain of its officers salaries, commencing with the 1st of December of the pre

REVIEW UPON APPEAL.

Where the evidence is conflicting, and no error appears in the instructions of the court, a verdict of the jury upon questions of fact will not be disturbed upon appeal.

Appeal from district court, Pueblo county. Action by the Pueblo Hardware Company against John Livezey, Charles Bergenthal, and G. L. Dobbins & Co. From a judgment for the plaintiff, defendants appeal. Affirmed.

This suit was brought by appellee against the defendants to collect a book account of $135.08, and the amount of a promissory note for $249, executed by the firm of Dobbins & Co., payable to the order of John Livezey one day after date, dated May 13, 1891, assigned by Livezey to the plaintiff, July 29, 1881. The complaint is in the ordinary form. Dobbins and Bergenthal filed separate answers: (1) Denying that Livezey, Bergenthal, and Dobbins were or ever had been partners under the firm name of G. L. Dobbins & Co. or any other name; (2) alleging that the firm of Dobbins & Co. was composed of Dobbins and Bergenthal; (3) denying the indebtedness of the book account; (4) admitting the making and delivery of the note; (5) alleging an indebtedness from Livezey to Bergenthal individually of the sum of $300, which had been assigned to Dobbins & Co., which would be set off against the note. A trial of the issues was had to a jury, resulting in a verdict and judgment for the plaintiff for the sum of $450.44, from which an appeal was prosecuted to this court.

Hartman & Glenn and J. H. Mechem, for appellants. Chas. E. Gast and E. E. Hubbell, for appellee.

REED, J. (after stating the facts). Although it appears that Livezey, a defendant below, is appellant here, we are at a loss to understand how he becomes one. It does not appear that he was served with process or entered his appearance. He made no an swer, and no judgment by default was en

1 Rehearing denied March 11, 1895.

tered against him, nor does he appear to have in any way participated in the proceedings or appeal. It appears that the motion for a new trial was made by G. L. Dobbins and Charles Bergenthal, and overruled. Judgment entered against the firm of G. L. Dobbins & Co., and the appeal bond executed by G. L. Dobbins & Co. One of the principal issues of fact to be determined, and perhaps the controlling one, in the disposition of the case, was whether or not Livezey was a member of the firm of Dobbins & Co. It was asserted in the complaint and denied in the answer. The evidence in regard to it was contradictory. The court did not instruct the jury to find upon the issue, and there was no finding except as it might be inferred from the general verdict, and such inference would be that they found that he was not a partner. Eliminating from the discussion the question of his partnership, upon which there was no finding, no question of law was involved, but questions of facts only. The evidence on every question involved was conflicting and contradictory. Under such circumstances, the finding of the jury will not be disturbed, unless for misdirection by the court. In this case the instructions of the court, on all questions submitted, appear to be ample and correct. The judgment of the court will be affirmed. Affirmed.

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1. Error involved in plaintiff's failure to put in evidence an application for insurance, or to call on defendant to produce it, the policy itself having been put in evidence, is without prejudice to defendant, where defendant afterwards introduced it as part of its defense.

2. One applying for fire insurance through a soliciting agent is bound to ascertain the scope of his authority.

3. Where an application for fire insurance, not attached to the policy, is identified by both parties as the one referred to in the policy, the fact that the policy itself, in referring to the application, failed to set out its date, is immaterial.

4. Where an applicant who is able to read signs, without reading an application filled out by a soliciting agent, and containing plainlyprinted provisions that the applicant thereby covenants that the facts therein stated with reference to the property are true, and form part of the policy, and amount to warranties, and that the application is the act of the applicant, whether filled out by him or by another, he assumes the risk of falsity in the facts as written out by the agent.

5. Where the application is made part of the contract of insurance, all statements of the insured therein relative to the use, care, or character of the property are warranties, and must be strictly complied with, whether material to the risk or not.

On Rehearing.

1. A transfer of insured property between partners is not a breach of a condition in the policy against a sale or transfer of the property.

2. The failure of an applicant to place a fair

and reasonable value on the property, when statements in regard to value are made warranties, renders the policy void.

Appeal from district court, Arapahoe county.

Action by John Wich against the Sun Fire Office on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.

In December, 1888, appellee, Voght, Ells, and Hess purchased a brewery at Florence from one McCandless, together with appliances, for the sum of $12,150, $4,000 of which was paid in cash. The remaining $8,150 was secured by the joint notes of the four purchasers, and a mortgage upon the property. The conveyance from McCandless was made to the four purchasers. The four then formed a partnership to prosecute the business of brewing, and carried on such business under the name of the "Arkansas Valley Brewing Company." About February 1, 1889, one Carleton, an insurance solicitor for Perkins, Hart & Co., of Denver, applied to appellee to insure the property; was sent by him to examine it. After making such examination, he reported that he would insure it to the amount of $15,000, to which appellee agreed. A blank application was filled up by Carleton, and executed by appellee: "The Arkansas Valley Brewing Co., by John Wich, Owner." The firm of Perkins. Hart & Co., finding they could not write the entire $15,000 in companies represented by them, so informed appellee, and secured $1,530 of the amount in the office of appellant, through its agents Packard, Wilson & Piper. The former application and data were submitted to the last-named company. The application being in some respects unsatisfactory, a second one was filled up by some agent or representative of the insurers, and executed by appellee the same as the former. The four partners continued the business until about the 15th of August, 1889, when Ells, Voght, and Hess drew out, conveyed their interests by quitclaim deed to appellee, and the partnership was dissolved; appellée paying nothing for their interests, but assuming notes and mortgage made to McCandless. From that time appellee prosecuted the business some 26 days, until the night of September 5th, when buildings, appliances, etc., were destroyed by fire. Appellant refused to pay the $1,530 written by it upon the property, and appellee brought suit. Trial was had to a jury, resulting in a verdict and judgment for the plaintiff (appellee) for the sum of $1,617.22, from which an appeal was prosecuted. The remaining facts necessary to an understanding of the case, it is hoped, will appear in the opinion.

Chas. J. Hughes, Jr., and Tyson S. Dines, for appellant. Chas. M. Bice and S. D. Walling, for appellee.

REED, J. (after stating the facts). There are in this case 61 errors assigned, many

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