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or of an interest therein. If done under said company, and it is admitted by Chapand in pursuance of the contract, and ac- man that he purchased one-fourth of the quiesced in by the parties, it was as binding stock. You are instructed that Dennison's upon them as though the fee to the mine had rights or interests in any mine obtained by been conveyed directly to the defendant. Chapman within ninety days from the date If A. agrees to purchase for B. 1,000 bushels of the agreement did not depend upon Chapof wheat, at a given price per bushel, but man's obtaining the whole mine. Chapman only succeeds in purchasing one-half of that could not defeat Dennison's rights by purquantity, B. is not bound to accept it under chasing only an interest, be it half or quarter, the contract; but, if he does so, he must pay in a mine. If the interest, whatever amount for it, and most certainly A. could not after- it was, was purchased in pursuance with the wards object that the contract did not bind agreement between Dennison and Chapman, him. In the present instance plaintiff under then Dennison was entitled to one-fourth of the contract might have insisted that an Chapman's interest, whatever that might be.” entire mine should be purchased, and that “(6) As before stated to you, Dennison claims the legal title should pass to defendant; but in the complaint that Chapman bought fifty if instead thereof defendant under the con- thousand shares of the capital stock of the tract purchased, not the whole, but a one- Idlewild Gold Mining Company, and that, fourth interest in a mine, the ownership of while twenty-five thousand shares were taken which was evidenced, not by the legal title, in his brother's name, his brother was but but by certificates of stock showing a bene- the nominal owner of it. It is admitted by ficial interest, and plaintiff saw fit to accept the defendant, Chapman, that he bought and did accept it in fulfillment of the con- twenty-five thousand shares. If you find tract, it does not lie with defendant to com- from the evidence that the defendant, Chapplain, or to evade his obligation, because he man, entered into that mining venture, and has not complied more strictly with his con- purchased the stock in pursuance with the tract.

agreement between himself and Dennison, The complaint does not in precise language then you are instructed that Dennison would arer that the stock was purchased “at prices be entitled to at least one-fourth of twentymutually satisfactory to the parties," as ex- five thousand shares of the stock of the said pressed in the agreement. It does, however, Idlewild Gold Mining Company; that is to charge "that the purchase by the defendant say, he would be entitled to six thousand two of said stock and said interest in said mine hundred and fifty shares. It is admitted by and mining property was made under and Chapman that this stock is of the value of in pursuance of and in accordance with the $2 per share, or $12,500 in all.” The court agreement between the plaintiff and defend- also gave the second instruction asked by the ant, as set forth in paragraph one of this defendant, which is as follows: "I instruct complaint." If made in accordance with that you that upon the written contract contained agreement, it must have been at a price in this complaint the plaintiff is not entitled mutually satisfactory to the parties. It fur- to recover anything for the Idlewild stock, ther charges that in pursuance of the agree unless there was some other and a further ment plaintiff and defendant immediately agreement between them by which the plainbegan to operate said mine. These and other tiff would be entitled to the stock. In other allegations indicate that the price was satis- words, the contract of September 2, 1889, confactory to plaintiff, as the fact of purchase templated the purchase of a mine, and does indicates it was to defendant, and, in the not apply to and is not applicable to the purabsence of a special demurrer, was sufficient. chase of these shares of stock. Therefore,

There was evidence sufficient to support unless you are satisfied by a preponderance the verdict. To comment upon it at length of evidence that there was another and difwould be productive of no good results. It | ferent agreement entered into between the was conflicting upon the vital question as to plaintiff and the defendant in addition to the whether the purchase of the stock in the contract of September 2, 1889, it will be your Taylor Mine was made pursuant to the con- duty to find that the plaintiff has not been tract, and for the joint benefit of plaintiff damaged in any sum or amount whatever by and defendant, as in the contract provided, reason of the failure of the defendant to deor independent of that contract, and, unless liver to him shares of the Idlewild stock." some error of law has intervened fatal to It is quite apparent that there is a conflict the verdict, it must stand.

in the instructions given on behalf of plain. By far the most serious question involved tiff and that given at the request of the dein the case arises under the instructions of fendant. The former instructed the jury, in the court to the jury. The fourth and sixth substance, that if the stock or an interest in instructions given to the jury at the request | the Taylor Mine was purchased under and of plaintiff are as follows: “(4) It is admit- pursuant to the contract between the parties ted that the defendant, Chapman, did not of September 2, 1889, plaintiff was entitled purchase the whole of the Taylor Mine or to a one-fourth interest therein; while the of the stock of the Idlewild Gold Mining instruction given on behalf of defendant in. Company. It is claimed by Dennison that formed the jury that the agreement of SepChapman purchased one-half of the stock of tember 2, 1889, contemplated the purchase of a mine, and is not applicable to the purchase the issues made by the pleadings and the of stock in a mine, and that, unless there evidence thereunder, and still others not adwas another and different agreement entered missible under any state of pleadings apinto between the parties in addition to the plicable to the case. The pivotal point in original contract, plaintiff could not recover the case was as to whetber or not the puron account of the nondelivery of the stock. chase of the stock was made under and purWe are of opinion the instructions on behalf suant to the contract of September 2, 1889. of the plaintiff were correct, and that in fa- That question determined in favor of the vor of the defendant erroneous. As before plaintiff, as it was by the verdict, and the stated, in substance, if the purchase of the recovery is as little as could reasonably be stock was made under and pursuant to the expected from the evidence. The judgment contract, and accepted by plaintiff as such and order appealed from should be affirmed. compliance, it is not perceived that any other further or additional contract was necessary. Weconcur: VANCLIEF, C.; BELCHER, C. It may well be that in the event of delivery of the stock some arrangement would have PER CURIAM. For the reasons given in been necessary to secure to defendant the the foregoing opinion, the judgment and ordividends until he was reimbursed for his der appealed from are affirmed. outlay on account of the interest to be trans. ferred. So it would have been had defendant purchased the mine and conveyed a

(20 Colo. 519) fourth interest to plaintiff at the end of one

McCANDLESS v. GREEN et al. year, with a proviso that defendant was to

(Supreme Court of Colorado, Jan. 2, 1895.) be reimbursed from the output of such mine.

JURISDICTION OF SUPREME COURT-ESTOPPEL. These were details which under the agreement the parties could have carried out, or

1. A proceeding to enforce a mechanic's lien

does not involve a freehold, within the proviso failing in which the law would have deter- of Sess. Laws 1891, p. 118, excepting suits inmined for them. The view of defendant, as

volving a freehold from the general provision detailed by plaintiff in his testimony, seems

that suits for less than $2,500 are not appealable

to the supreme court. rational. He said, according to plaintiff's 2. The constitutionality of the mechanic's testimony: “Now, we will go up there and lien law cannot be attacked in a suit to enforce take a look at it, and if you think well of

a lien not involving $2,500, in order to give the

supreme court jurisdiction under Sess. Laws the way I put this to you, and think well of

1891, p. 118, on the ground that the law imthe mine, all right, and we will vary our con- pairs the obligation of the contract in allowing tract to suit the case exactly, if it needs any

a subcontractor to file a lien, where his right modification; but I cannot see that it does

to so file a lien was recognized in the contract

between the original parties. not apply to this case. You may have to abate your demand on me. I have not got

Appeal from district court, Fremont county.

Action by Mosier T. Green and others all of the mine now, and you will have to have one-fourth of what I have." Plaintiff

against James A. McCandless. From a judgtestified that upon visiting and examining

ment of the district court for plaintiffs, dethe mine he was pleased with it, and that

fendant appeals. Appeal dismissed. they then proceeded to develop it, etc. The C. D. Bradley and Thomas Macon, for aperroneous instruction was in favor of appel- pellant. Benedict & Phelps, for appellee. lant, and it has been repeatedly held by this court that a conflict in instructions which HAYT, C. J. This is an action, brought by could not operate injuriously to appellant is appellees, Green and others, to enforce a menot ground of reversal. Tostate of Gharky, chanic's lien against the property of appel57 Cal., at page 280; People v. Velarde, 59 lant, McCandless. In the district court judy. Cal., at page 461; People v. Smith, 59 Cal. ment was rendered in favor of plaintiffs for 601; People v. Ah Luck, 62 Cal. 503; People the sum of $907.76, and tlie sum declared a V. Turcott, 65 Cal. 126, 3 Pac. 461. Again, lien against certain property of the appela party cannot except to instructions given lant. The first question presented here for at his own request, and in this case did not consideration has reference to the jurisdiction attempt to do so. Mining Co. v. Baker, 70 of this court to review the proceeding. The Cal. 572, 8 Pac. 305, and 11 Pac. 651. It fol- first section of the act creating the court of lows that as the instructions excepted to appeals reads as follows: “No writ of error were proper to be given, and as the errone- from, or appeal to, the supreme court shail ous instruction was in favor of appellant, lie to review the final judgment of any infeand given at his request, and could not have rior court, unless the judgment, or in reinjured him, the judgment should not be re- plevin, the value found exceeds two thousand versed for that cause. The instructions, tak- five hundred dollars, exclusive of costs. Proen together, were as favorable to the defend- vided, this limitation shall not apply where ant as the law would warrant.

the matter in controversy relates to a frauOf the instructions asked on behalf of the chise or freehold, nor where the construction defendant, and refused, it need only be said of a provision of the constitution of the state some of them were in substance embodied in or of the United States is necessitry to the instructions given, others not applicable to determination of a case. Provided, further, that the foregoing limitation shall not ap- and claims chargeable to the contractor as a ply to writs of error to county courts." Sess. condition precedent to payment, and reserves Laws 1891, p. 118. As the judgment in this to the owner the right to retain out of any case is for less than $2,500, if the jurisdiction payment an amount sufficient to completely of this court is to be maintained, it must be indemnify him against any lien. Hence it under the foregoing proviso with reference to appears that the right of subcontractors to freeholds and constitutional questions. In file liens was especially recognized in the the case of Wyman v. Felker, 18 Colo. 382, contract between the original parties. It 33 Pac. 157, it was said that “a freehold is must not be inferred from what has been said never involved, within the meaning of the that, in the absence of such provisions, the statute, unless the primary object of the suit question of the unconstitutionality of the act is the recovery of the freehold estate, or when in this respect could be successfully mainthe suit, if prosecuted to judgment, will, as tained. In this case it is clear that this court between the parties, result in one gaining or has no jurisdiction to entertain the appeal, the other losing the estate." In the case of and it is accordingly dismissed. Appeal dis Clement v. Reitz, 103 Ill. 315, it was held that missed. a proceeding to enforce a mechanic's lien against real property did not involve a ques

(20 Colo. 506) tion of freehold. Is the construction of a provision of the national or state constitution

BAKER V. BARTON et al. necessary to a determination of the case ? (Supreme Court of Colorado. Jan. 21, 1895.) This particular part of the act received the JURISDICTION OF SUPREME COURT-CoxstiTUTIONcareful attention of this court in the case of

AL QUESTION-FALSE IMPRISONMENT

JUSTIFICATION. Trimble v. People, 19 Colo. 187, 34 Pac. 981.

1. The supreme court has no jurisdiction It was there held that, to invoke jurisdiction

of a writ of error to a judgment, not a money under this proviso, it must appear from the judgment, in an action not relating to a franrecord that the decision of such question is

chise or freehold, or involving a constitutional necessary to a determination of the case, and

question.

2. The rule that, in actions for false imprisalso that the question itself is fairly debata- onment and the like, defendant cannot give ble, and not based on mere assertion. Refer- proof of justification without pleading it, is not ring to appellant's briefs to ascertain the na

à constitutional requirement, but merely a rule ture of the constitutional objection inter

of pleading, which inay be changed by the legis.

lature. posed, and we find in the first a few lines only are given at the close to a constitutional

Error to court of appeals. question, while in the brief subsequently filed

Action by Alyah L. Baker against Elias it is stated that the two parts of the statute

R. Barton and others. From an affirmance are easily harmonized, and that it is not nec

by the court of appeals of a judgment for essary to attack the constitutionality of the

defendants, plaintiff brings error. Writ disact in this case.

missed. In neither of these briefs is it claimed that any particular section of J. F. Tourtellotte and W. T. Hughes, for the mechanic's lien act is unconstitutional, plaintiff in error. nor is any particular provision of the constitution of the United States or of the state of PER CURIAM. This action was comColorado pointed out as inhibiting the legis- menced by plaintiff in error, Alvah L. Baker, lation in question. The character of the con- against Elias R. Barton and others to restitutional objection which counsel wish to cover damages for an alleged illegal arrest interpose in this case can only be inferred and false imprisonment. The trial in the from the concluding sentence of the first district court resulted in a verdict and judgbrief, which is as follows: "A law of this ment for the defendants. To this judgment character is clearly against public policy and a writ of error was sued out from this court one that impairs the obligation of contracts." before the passage of the act creating the If it is meant by this that legislation confer- court of appeals, but, after the taking efring a right upon subcontractors to file a lien fect of that act, the case was taken to the within a short time after they have ceased court of appeals by stipulation of the parwork, or after the last materials are fur- ties. When the case came on for hearing nished, is against public policy, no decision in the court of appeals, the judgment of the has been cited in support of such contention, district court was affirmed. See Baker V. and we know of none, while the decisions are Barton, 1 Colo. App. 183, 28 Pac. 88. The numerous to the effect that such a law is not action does not relate to a franchise or freeonly valid, but beneficent, and should be up- hold, and, as no money judgment has been held. And certainly it cannot be success- rendered in the case, this court is without fully claimed in this case that the law im- jurisdiction to entertain the case upon writ pairs the obligation of the contract, as the of error to the latter judgment. Trimble written agreement entered into between ap- v. People, 19 Colo. 187, 34 Pac. 981; Hurd pellant, McCandless, and Contractor White v. Carlile, 18 Colo. 461, 33 Pac. 161; Wyman specially provides that the contractor should, v. Felker, 18 Colo. 382, 33 Pac. 157; McCandif required, give good and sufficient evidence less v. Green (Colo. Sup.) 38 Pac. 64. The that the premises were free from all liens contention of counsel, as we understand it,

v.39P.no.1-5

con

is that the district court erroneously permit- Montrose, in Montrose county, Colorado. ted the defendants to justify the acts com- (2) That in contemplation of the corporaplained of, although no justification was tion of these plaintiffs, and for the purpose pleaded, thereby depriving the plaintiff of of constructing, owning, operating, and a right universally recognized in the practice, maintaining the flouring mill then contemand protected by the constitution, as it is plated, this defendant, with others, on or said. We need not examine the record for about the 20th day of October, A. D. 1887, the purpose of determining whether or not at Montrose, Colorado, became a subscriber error in this regard intervened, for, if such to the stock of plaintiff company by signing error be shown, it would not give this court an agreement in writing, of which the foljurisdiction to review the judgment. As a lowing is a copy: 'Synopsis of the Plans general rule, in this character of actions, if of the Necessity Flouring and Grist Mills. the acts complained of are actionable, and The valley of the Uncampahgre has been are admitted or established, good practice demonstrated to be very productive in requires a plea of justification to admit proof wheat, barley, and corn growing. That the in bar of the action; but this is a rule of success of the farmer, the professional man, pleading subject to change at any time by merchant, and common laborer all depends the legislature. It is not a constitutional | upon the productions of the natural rerequirement. There is, therefore, no

sources of this valley. That in order that stitutional question in the case to give this the local farmer may be prosperous, and incourt jurisdiction, and the writ of error must duced to cultivate his farm, he must have a be dismissed. Writ dismissed.

market which will give him the highest price for his product. The object of this enter

prise is to give the local ranchmen all that (5 Colo. App. 479)

this enterprise can afford, at the same time LOUTSENHIZER V. FARMERS' & MER- charging them a reasonable profit, to be deCHANTS' MILLING CO.

termined by the subscribers. That this shall (Court of Appeals of Colorado. Jan. 14, 1895.) be a stock concern,-each man receiving full CONTRACT OF SĽBSCRIPTION- Bonu'S TO MANU

paid up stock for what he pays, and no FACTORY--RIGHT TO BRING Suit.

stock to be sold for less than dollar for dol1. In an action on contract of subscription lar, and no stock to be issued except as the which, after reciting the advantages to be gain

money is actually paid as aforesaid, and ed from building a flour mill in the neighborhood, and showing that it was the intention of

only for such a sum as may be determined the signers that a corporation should be or

by the subscribers hereof as necessary to ganized to carry out the scheme, fails to state build and repair said mills, and to buy grain. the corporate name, the amount of capital

That the object of this enterprise is, pristock, or by whom the corporation shall be organized, but states that the signers agree to pay

marily, to furnish the local farmer with a to a “committee” to be thereafter selected a good market for his grain; 2d, to exchange certain amount for the purpose of building the him flour and grist for his grain, for what mill, a complaint by a corporation, subsequently organized, by which the mill is built, which

it is really worth; 3d, to operate said mills fails to show that the corporation was by agree

after accommodating the local purchasers, ment substituted for the committee, or that in -to run said mills as a merchant mill, and some way the authority to receive the money

buy and manufacture flour, meal, etc., so as was transferred to it, is demurrable.

to make the stock valuable as an investment; 2. Allegations that such contract was a promise to pay defendant, and was a subscrip- 4th, to build up the grain-growing interest tion to the capital stock of the corporation, are generally of the valley, which helps all our ineffective, inasniuch as the agreement shows

people, of every trade and profession. These on its face that it was neither.

details of the plans and methods shall be Appeal from district court, Montrose coun

arranged by the subscribers on a meeting ty.

to be hereafter called. To build the NecesAction by the Farmers' & Merchants' Mill

sity Flouring and Grist Mills at Montrose, ing Company against 0. D. Loutsenhizer to

Colorado, we, the undersigned, for and in recover on subscriptions to stock. From a

consideration of the efforts now being made, judgment for plaintiff, defendant appeals.

and to be hereafter made, to build the flourReversed.

ing and grist mills at Montrose, Colorado, N. G. Clark and F. D. Catlin, for appel- do hereby agree to pay a committee, to be lant. Sherman & Twitchell, for appellee. hereafter appointed by the subscribers here

of, the amount set opposite our respective THOMSON, J. The only question present- names, on demand; and this obligation shall ed by the record in this case relates to the be as binding as if it were a promissory note, sufficiency of the complaint, of which the as the projectors of this enterprise are going following is a copy: “Complaint. The Far- to great labor and expense in the premises, mers' and Merchants' Milling Company, and incurring obligation on the faith hereof.' Plaintiff, v. 0. D. Loutsenhizer, Defendant. (3) That, among many others, this defendPlaintiff, complaining of defendant, alleges: ant signed and executed said agreement, (1) That plaintiff is a corporation organized and subscribed and set opposite his name and existing under the laws of the state of the sum of two hundred and fifty dollars, Colorado, and as such doing business at which amount he thereby agreed to pay to said company, as is set forth in said agree- measure and character of the defendant's ment of subscription. (4) That thereupon, liability, as a party to it, must be deterand upon the basis of subscriptions and mined from the contract itself. On its face agreements of defendant and his cosubscrib- it is not a contract with the plaintiff, or for ers, as aforesaid, plaintiff company was the benefit of the plaintiff. It is not a subduly formed and incorporated by this de- scription to the capital stock of any comfendant and his cosubscribers, as such sub- pany, or an agreement for future subscripscribers to said object, under the corporate tion to such stock. Its consideration is not name and style of the Farmers' and Mer- the delivery of any stock to the subscribchants' Milling Company, this plaintiff, and ers, but is wholly unconnected with any thereupon the Necessity Flouring and Grist scheme of incorporation. It is an absolute Mills mentioned in said subscription were and unconditional promise by its signers to constructed by defendant and his cosub- pay the several amounts subscribed by scribers, under the corporate name and style them, for the purpose of building the Necesof the Farmers' and Merchants' Milling sity Flouring & Grist Mills, to a committee Company, this plaintiff, in pursuance of said whom they should thereafter select. What subscription, and at great cost and expense, disposition the committee should make of and that all the agreements and provisions the money, when paid,-whether the buildof said subscription have been fully per- ing should be done under its supervision, formed and carried out by said cosubscrib- and the money disbursed by it for the purers and the plaintiff, duly formed for such pose, or whether it should turn the money purpose as aforesaid, and plaintiff is ready over to some other person or persons, who and willing to issue stock to defendant as should have charge of the construction of per said agreement, and said money agreed the mills,—the contract does not provide. to be paid by defendant is necessary for the The signers probably left this matter open carrying out of the plans of said agree- for instructions to be given by them to the ment. (5) That defendant has not paid his committee when it should be appointed. said subscription, or any part thereof, and They promised to pay the money to the comthat payment was duly demanded of defend- mittee, and not to any one else, and it is preant on or about January 1, 1888, and that by sumed that they had some object in thus rereason thereof there is now due plaintiff serving to themselves the control of their from defendant the sum of two hundred and funds by means of a committee to be chosen fifty dollars, together with interest thereon by them, and answerable to them. The from January 1, 1888, at the rate of ten per complaint does not state whether a cent. per annum. (6) That the amount in- mittee was ever selected or not. If there volved, and for which relief is sought in this never was a committee, no action could be action, does not exceed the sum of two thou- maintained upon the promise, for want of sand dollars. Wherefore, plaintiff prays a payee, unless, by an arrangement subsejudgment for $250, together with interest quently made, someone else was substithereon from January 1, 1888, at the rate of tuted for the committee. If a committee ten per cent. per annum, and for costs of was appointed, the money was payable to this suit, and general relief."

it, and there could be no right of action upThe preliminary portion of the instrument on the promise, outside of it, unless its ausued on is in the nature of a prospectus, set- thority to receive the money was in some ting forth a project, and the advantages to way transferred to another. It may be be realized from its consummation. It may

either that by a binding agreement among be inferred from its language that a corpo- the parties, afterwards made, the commitration was contemplated for the purpose of tee was dispensed with, and the plaintiff carrying into effect the proposed scheme; substituted for it, or that a committee was the subscribers to the instrument to deter- appointed, and its rights transferred to the mine the amount necessary for the purpose, plaintiff in such way that the defendant was and to arrange details of its plans and 'meth- bound by the transfer, but nothing of the ods. The prospectus is quite general and kind appears. The fatal defect in the comindefinite. The intended corporation is not plaint is its failure to show how any cause named, or the amount of its capital stated; of action upon the contract ever accrued to and it is uncertain by whom it was to be the plaintiff. Apparently, the necessity of organized, or who should constitute its mem- some such showing was recognized, and an bership,-whether the subscribers, or others attempt made to supply it by alleging that not mentioned. This is followed by the con- the contract was a promise to pay the plaintract, the enforcement of which is sought tiff, and was a subscription to the plaintiff's against the defendant. This contract, as capital stock; but those allegations do not far as it goes, is complete within itself, and help matters, because, upon its face, it was is not elucidated much by what precedes it. neither. The contract speaks for itself, and It seems to have little connection with the it is useless to aver that it is what it is not. introductory matter, and might be entirely The judgment will be reversed, with leave detached without suffering any loss of mean- to the plaintiff to amend its complaint as it ikg, or affecting any remedy upon it. The may be advised. Reversed.

com

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