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When the action was begun, the plaintiff case must go back for another trial, we rested his right to recover upon the user by would suggest that the complaint be so far the public of the highway for a period of up- amended as to contain a specific allegation wards of 10 years. He was compelled to of the breach of this covenant. Under the abandon this position because of statutory general weight of authority, the plaintiff changes. On the present argument much re- may recover when he proves the legal existliance placed on the legislation affecting ence of a road, and produces a deed containroads, and it is probably well to dispose of ing a covenant against incumbrances, though this matter before proceeding with the main he may not allege the other two, and recor. discussion. Ever since territorial times there er on the strength of either, when his evi. have been statutes providing for the estab- dence only proves the existence of a highlishment and maintenance of public high-way. Rawle, Cov. pp. 80, 101; Devl. Deeds, ways by the boards of county commissioners 88 888–890. The chief difficulty flows from the of the various counties. With the acts which lack of proof of one of two things, either establish particular roads we have nothing one of which might sustain the judgment. to do, but section 5 of chapter 76 of the Re- We are not prepared to disagree with some vised Statutes of 1868 provided that all roads of the authorities which, in an action based should be considered highways which had on the existence of a highway, hold the been or might be declared such by the legis- plaintiff makes out his case when he prolative assembly or by the board of a coun- duces an order establishing it made by the ty, or which had been or should be so used proper authority. This seems to be the docand traversed as that they would be regarded trine of some of the states, and we are not highways under the common law. The stat- compelled to dissent therefrom. Dumoss v. ute further provided that a board of county Francis, 15 Ill. 343; Galbraith v. Littiech, commissioners might act whenever a petition 73 Ill. 209. We have been referred to no signed by 10 householders of the county, and case adjudging that no other part of the reccontaining sundry and divers matters, should ord is admissible, and that, if the other part be presented to them. It is not necessary, in of the record be produced, and it shows the this discussion, to state the requisite con- board acted without authority, such evidence tents of the petition, other than the require- may not be offered by the defendant in supment that it must be signed by 10 household- port of his contention that there has been no

Later, and in 1874, the chapter of the breach of this covenant. The books are full Revised Statutes which has just been re- of authorities to the effect that the proceedferred to was amended by striking out the ings of a board, even of such limited jurisprovision respecting the common-law user, diction, are not open to collateral attack. and inserting a limitation period of 10 years. The only trouble is to ascertain just what In 1877, the act was again amended, and the will constitute an attack of this description 10-year clause was eliminated. Both of these and what may not be open to that criticism. amendatory acts contained the general state. It seems to be true, in matters of this sort ment that all roads should be considered pub- as well as in the case of a judgment, that a lic highways, which had been declared such stranger to the procedure may not impeach either by the legislature or by the board of it for matters dehors the record. It seems, county commissioners. It is insisted that however, to be pretty generally conceded these acts serve to validate all roads estab- that any judgment which is void, or any lished by the various boards. It will be ob- void order made by a board, may be attacked. served there is substantially no difference be- The only limitation which all the books tween the act of 1808 and the amendatory agree to be a universal one respects the acts of 1874 and 1877, save with respect to mode in which the attack shall be made, or the clause respecting the user by the public. the proof by which the character of the judg. In all other details the legislation is precisely ment or order may be determined. the same, and the amendments were evident- on inspection of the record or order, it aply adopted by the legislature not as validat- pears that the judgment is void, it is coning acts to correct any mistakes of or obviate ceded the question may be raised whenever any errors committed by the boards in estab- the record is used as an instrument of evilishing roads. No such purpose is expressed dence or as a basis of recovery. Vanfleet, in the act, nor do we conceive that any such Coll. Attack, c. 1, § 12, et seq. inference can be legitimately drawn from It is wholly unnecessary to discuss the their passage.

This matter will therefore question of the extent to which presumpbe dismissed from any further considera- tions may be indulged in with reference to tion.

the procedure of courts or bodies of limited The question recurs as to the plaintiff's jurisdiction. Had the petition been lost, or remedy, and the extent to which he must go some of the papers in the chain been missin making out his case. Whether the plead- ing, then it might possibly have been necesing, as it stands, would permit the plaintiff sary to consider how far we should go in preto have judgment on proof of what might be suming the board was duly authorized to act. adjudged a breach of the covenant against Some other circumstances might be conceivincumbrances we need not decide. It is a ed where the doctrine of presumptions would somewhat difficult question, and, since the aid the plaintiff. Had the order recited that

If, up

on a petition duly signed, and on a report dence is not sufficient to enable us to pass adequately made, the board considered the on this question. There are one or two aumatter, and, having considered it, ordered thorities in this state which furnish a basis the road established, a legitimate inference for the suggestion. Water Co. v. Middaugh, might be drawn that the board acquired its 12 Colo. 434, 21 Pac. 565; Railroad Co. v. jurisdiction in a statutory way, and was Allen, 13 Colo. 229, 22 Pac. 605. The order duly authorized to proceed. These ques- recites the finding of the viewers as to the tions, however, are purely matters of specu- value of the land taken, and states that Zulation, for the order itself recites nothing. loff was the owner. The clerk is ordered to Under this circumstance, the balance of the draw a warrant for the damages, and it may record must be legitimate evidence for the be an examination of the record will disclose purpose of ascertaining what the board did, the fact of Zuloff's ownership when the orand on what basis it proceeded. We do not der was made, and that he accepted the conceive that the production of the record warrant in satisfaction of his claim of title. as an entirety constitutes a collateral at- The two authorities cited seem to indicate tack in the language of the books, even such an acceptance would cure all the irregthough portions of the record may be pro- ularities and defects in the proceedings, estop duced by the plaintiff and the balance may the owner from any claim of title, and it be offered by the defendant. The evidence might, if the road is shown to have been would seem to be entirely legitimate, and to devoted to public use, be operative against give the defendant the right to furnish any. the grantees. This matter is suggested by thing else found in the record which may the arguments and by the record; and, while show that the board lacked authority to pro- making these concessions, we do not wish ceed. The authorities are undoubtedly di- to be understood as directly deciding them vided on this question, though the diversity until the evidence on the subject is produced, springs, in our judgment, more largely from and the matter comes up for discussion on the neglect on the part of the courts to limit this question. We simply say these things and distinguish the case immediately decid- may be true, but we do not care at this time ed from the others, and to confine their to consider or determine them. For the erjudgment to the exact issue involved in the ror which the court committed in excluding particular suit. The whole subject is very the testimony offered by the defendants, the exhaustively reviewed in Lewis, Em. Dom. case must be reversed. The court below c. 14. Disregarding any apparent excep- will permit the plaintiff to amend his pleadtions,-and the exceptions are more apparent ing in such manner as he may be advised, than real,-it may be safely stated that, to and to grant a similar privilege to the de. authorize a board of limited jurisdiction and fendants by way of amendments to their authority to proceed, a statutory petition answer. Reversed. must be presented. By this we mean there must be a petition, signed by the requisite number of people; though whether the peti

(6 Colo. App. 21) tion itself must in all other respects be in

MANNERS v. FRASER. exact conformity to the statute, we do not determine, since the cases are not in har

(Court of Appeals of Colorado. March 11,

1895.) mony on this matter. They do, however,

REVIEW ON APPEAL-EXCEPTIONS TO JUDGMENTunite on the proposition that a petition must

MECHANIC'S LIEX-SUIT for ENFORCEMENT be filed, though, doubtless, some of them go

-AMENDMENT OF ANSWER. so far as to hold, if the order recites the

1. Whether the evidence supports the judgfact of the petition, the matter may not be ment will not be considered, in the absence of an otherwise questioned. The present case is

exception to the judgment.

2. In an action to enforce a mechanic's lien, not brought at all within the scope of these

where defendant set up a written contract, and conflicting authorities. It is a naked case failure of performance by plaintiff, if it appears of an order reciting nothing, but resting for

that essential elements of the contract were oral, its validity upon a petition which, on its face,

defendant may amend his answer by inserting

them. shows a failure to observe the statute. The facts in the case and the inspection of the

Appeal from district court, Pueblo county. record enable us to decide whether the plea

Action by J. T. Manners against W. G. of nul tiel record has been sustained. Since

Fraser for work performed under a contract. it was plainly settled by the record that the

From a judgment for defendant, plaintiff ap

peals. Affirmed. board was without jurisdiction to establish a road, we conclude its order was void, and Betts & Vates, for appellant. J. E. Rizer, a lawful highway has not been proven.

for appellee. There is possibly enough in the order, if sufficiently supplemented by other proof, to BISSELL, P. J. W. G. Fraser contracted justify the conclusion that, even though there with the owner of a piece of property in may have been a jurisdictional defect in the Pueblo to make certain improvements on an proceedings, it was cured by the acts of the existing building. The material part of the parties, and the road can be taken to be a contract with which we are concerned reduly-established public highway. The evi- lates to the elevation of the walls, the alter

ation of the windows and doors, to corre- which were not stated in the writing. There spond with another part of the building, in seemed to be some question concerning it, the rear of that on which the alterations and, on application, the court permitted an were to be made. Subsequently, Fraser and amendment to the answer, so that the althe appellant, Manners, negotiated about the legation would amount to a statement that brickwork necessary to raise the fire wall, the work was to be done according to specielevate the windows and doors, and a little fications prepared by the architect. Of this other masonry incidental to these things. the appellant complains. An amended repliDuring the progress of the negotiations be-cation was tendered, which contained a good tween Fraser and Manners, Manners went many matters other than what was filed in to Fraser's office to make a bid on the work. the original pleading, and the court refusThere is considerable controversy betweened to permit it to be filed as drafted, but the parties as to what happened and about did permit a part of it to stand. The case what was ultimately done. It is insisted was tried to the court, without a jury, who on one side that, when Manners put in his found for the defendant, and Manners apbid, he looked at the specifications which pealed. were in Fraser's office, which provided that As is w.anifest from the record, the case the doors and windows were to be raised to has been several times tried, and, notwiththe level of those in the rear part of the standing the magnitude of the controversy, building, and, with full knowledge of this it is important that it should end with the fact, he offered to raise the windows, build judgment, unless some radical error was fire walls and front lintels, for $110. Much committed by the trial court. As is usual, of this Manners denies, and insists that his it is insisted that the evidence does not supbid was for repairs, and raising windows, port the judgment, and that there is lacking front lintel, and "fire wall, four feet high." in the record some proof essential to the He insists that his original bid was for $125, result. It would be well to state in this but that it was reduced by the negotiation to connection that, according to the defendant's $110. He likewise contends that the four plea, he was put to considerable expense to feet related to the windows, as well as to the complete the work. The court must have fire wall. It may be said this would not found with him in this particular, since it be the natural limitation and construction of is evident that Manners did work of some the language of his offer. He went to work, value. We can better dispose of this partie and, after he had been working some little ular objection by referring to the circumtime, reached the windows; and, while he stance that there is no exception to the judgwas at the point of turning the arch of one ment. It has been repeatedly decided by to complete its elevation, it was discovered both the appellate courts in this state that a by the architect who had drawn the plans party must preserve his objection in the that the windows had not been raised on a proper form when he seeks to have the case line with the others, and needed to be put reversed because the evidence does not warup nearly two feet more. The architect di- rant the judgment. We did not, however. rected Manners to increase the height, but content ourselves with this rule, but read Manners declined, on the ground that it was the record. This fully convinced us that on not within the terms of his bid. Fraser all questions of any consequence there was came along, and there was some discussion a conflict in the testimony, and there is so between them as to what the contract was. much to be found to support the court's conIt is insisted, on one side, that Manners went clusions that in no event would we be in. to the office, and looked at the bid, which clined to interfere with them. contained no statement about the height, We do not concede that the court commit. and then went back to work. This Manners ted any error in permitting the defendant to denied, and he insists that, when Fraser de- amend his answer by inserting the allegaclined to permit him to go on with the work tion that the work was to be done accordunder his bid, he stopped, as he had a right ing to the specifications prepared by the to do. When he abandoned the work, he architect. There are two answers to the had earned a little less than $10. He after- contention. In the first place, it is tolerably wards filed a lien on the building, and clear that the evidence on this subject was brought this suit to collect his money. In admissible under the original answer. If it the original answer it was stated that Fraser was found by the court that the contract entered into a contract with Manners where- was not wholly in writing, but that some of by he had agreed to do certain work, which its terms rested in parol, it was entirely withwas specified, for a definite sum. At the in the rules of evidence to permit the de trial, what Fraser claimed to be the written fendant to prove all of its elements. Even bid put in by Manners was offered. This if this were not true, the amendment did contained nothing about any specifications, the plaintiff no harm, and he took no adand no data other than the general state- vantage of it, so as to be able to raise the ment that he was to raise 12 windows, and question here. In respect to matters of this build the fire wall and lintels. It was ur- description, it is well settled that a party ged that the defendant had the right to show must show he has been affected in some subwhat had happened respecting those matters stantial right if he would complain. The

en

supreme court has clearly established the From a judgment for plaintiff, defendants practice in such matters. If the defendant appeal. Affirmed. conceives that, when the application is made, Appellee, the administrator of the estate of he will be harmed by the order, he must ask William J. A. Howie, brought suit to recovfor a postponement, or seek in some other er from appellants the sum of $1,224.88, alway, if any be feasible, to preserve and pro- leged to have been due Howie at the time tect his rights. Gwynn v. Butler, 17 Colo. of his death. Appellants were mining the 114, 28 Pac. 466.

Continental Chief Mine. Howie was A sufficient amendment to the replication gaged, with teams, in hauling coal to the was permitted to enable the plaintiff to pre- mine, and ore from it. He died on the 14th sent any issue necessary for the preserva- day of October, 1892. At the time of his tion of his rights, and no evidence which he death it is alleged that there was due and offered was rejected because not within the owing to him for such services for the month scope of the pleadings. He was therefore of September and the 14 days of October the unharmed by the exclusion of a portion of amount for which the suit was brought. Prehis plea.

vious to September 1st, settlements had been We do not undertake to decide what is in- had, and all accounts adjusted. The comdispensable to entitle a party to abandon plaint was in the ordinary form. The de his agreement, and recover on a quantum

fendants, in answer, admitted the death of meruit for what he has done. We should Howie, the appointment of appellee as ad. have very grave doubts whether Manners ministrator, and that they the defendants was entitled to recover at all for what he were doing business under the name of Con. did. We do not care, however, to enter up

tinental Chief Mine; denied generally the on this discussion, and demonstrate that the other allegations of the complaint. A jury evidence establishes an agreement on his was waived, and a trial had to the court. At part to do certain work in a specific manner, the commencement of the trial it appears to and a failure on his part to perform. · We have been admitted in open court "that if content ourselves with saying that there is Howie, or his administrator, are entitled to enough in the record to warrant this conclu- recover against the defendants any amount, sion. There is evidence from which the that amount will be $1,217.” The trial recourt may have concluded the defendant sulted in a judgment for the plaintiff for $1,was damaged beyond the amount which 214.43, from which an appeal was prosecuted Manners had earned. Either conclusion ne

to this court. cessitates the affirmance of the judgment.

A. j. Sterling, for appellants. Geo. S. Under these circumstances, we are not at

Phelps and N. Rollins, for appellee. liberty to disturb it.

The trial court committed no errors which compel us to question his conclusions, and REED, J. (after stating the facts). We canthe judgment will accordingly be affirmed.

not understand what, if any, influence or ef. Affirmed.

fect the stipulation in open court that the amount of the recovery should be $1,217, if

anything, had upon the trial of the case. (6 Colo. App. 14)

Such a stipulation would naturally be conROGERS et al. v. MCMILLEN.

strued as fixing the amount in case the legal

question or questions presented should be (Court of Appeals of Colorado. March 11, 1895.)

determined in favor of the plaintiff, leaving

only legal questions to be determined upon the SET-OFF-PARTNERSHIP - LIABILITY WITNESSJUDGMENT-MOTION TO VACATE.

trial; but it does not seem to have been so 1. The amount of a note payable to a part

regarded by court or counsel, and we are ner individually cannot be set off by him against confronted with many pages of evidence, and a partnership indebtedness, in an action thereon elaborate columns of figures, for apparently by the maker of the note.

no purpose except to establish the conces2. A partner seeking to set off an individual claim against a partnership indebtedness in a suit

sion made as to the amount in the first inby an administrator against the firm is incompe

stance. The result reached having only vatent, under Gen. St. $ 3641, to testify as to an ried from the amount conceded $2.57, it may agreement with the firm and deceased whereby

be regarded as establishing the amount of the debt to deceased was to be applied on deceased's indebtedness to him.

damage. The small difference having been 3. A motion to vacate a judgment on the found for defendants, they cannot complain affidavit, unsupported by proof, of one of the that the judgment is excessive. defendants that another defendant was dead at its rendition, is properly denied where the at

Although the trial was very lengthy, and torney making the motion entered, the appear

contested with great zeal and energy, only ance of such defendant, and no suggestion of his one question seems to be involved, which may death was made until after the judgment was be briefly stated: Whether Michael, one of entered.

the defendants' partners, doing business unAppeal from district court, Lake county. der the firm name of the Continental Chiet Action by Neil McMillen, administrator, Mine, could set off a note of Howie, payable against John W. Rogers and others, partners to him individually, against the amount due under the name of Continental Chief Mine. | Howie from the partnership. The court properly found it could not be done, and funded as stated, certainly, unless there were gave a judgment for the amount admitted to good reasons for taking out and making it be due. Numerous errors are assigned, but, an individual transaction, it would have been aside from the general one that the finding made a company transaction in the first inwas against the evidence, they were prin- stance. In a suit by an administrator or any cipally to the refusal of the court to admit other plaintiff against a partnership, the, inevidence to establish the note as a set-off. dividual claim of one partner cannot be set The contention was that Howie borrowed off against partnership indebtedness. money from Michael, for which he gave his The attempt to establish the contract restnote; that it was for money borrowed to ed entirely upon the evidence of Michael, purchase teams; and that the work done was and was inadmissible, under section 3611, done for him individually in payment of the Gen. St., which follows: "That no party to note, and he was to collect from the company. any civil action, suit or proceeding, or perThis claim was negatived–First, by the son directly interested in the event thereof, books of Howie, where it was charged to the shall be allowed to testify therein, of his company; second, by the books of the compa- own motion, or in his own behalf, by virtue ny, where it was put to the credit of Howie; of the foregoing section, when any adverse third, by previous transactions, where, dur- party sues or defends, as the trustee or coning the existence of the note, monthly pay- servator of an idiot, lunatic or distracted ments had been made by the company to person, or as the executor or administrator, Howie direct, for large amounts, while only | heir, legatee or devisee of any deceased pertwo or three payments, amounting in all to son.” It is not taken out of the operation $300, had been paid by Howie to Michael, of the section by any of the exceptions of and indorsed upon the note. The note bore the section. Authorities in support of this date January 10, 1890; was for $1,500, pay- proposition are unnecessary; the decisions able six months after date; indorsed May 12, are uniform in this state and in the state 1891, with payment of $100; September 28, of Illinois, where the statute is the same. 1892, $200. Howie died October 14, 1892. It This also disposes of the supposed errors will be observed that the payment of $200 was assigned as Nos. 9 and 15. In each the demade September 28, 1892. The bills for the fendant Michael was incompetent to tes. month of September, as taken from the tify in regard to the matters asked. books, were $889.66, due two days after the The only other assignment of error that payment of $200 made by Howie to Michael, need be discussed is the fourth. On the and from another source. Howie was then 25th of February, 1893, the court found living, and the sum due from the company on for the plaintiff, and the judgment was enOctober 1st-$889.66—was not indorsed nor tered, and appeal prayed and allowed. passed to the credit of Michael. The bills With this entry and the signing and seal. for the month of October, until Howie's ing by the judge the bill of exceptions ends. death, on the 14th, amounted to $214.77. On Subsequently there follows an anomalous November 11th-nearly a month after How- proceeding. On the 8th day of March folie's death-Michael indorsed upon the note lowing, the following affidavit was made, $1,217.35 due from the company to Howie, be- and handed to the clerk: “Personally came ing the balance due upon the note. These before me, the undersigned notary public, facts, though not conclusive, were very strong within and for the county of Ara pa hoe, and circumstances tending to show that Michael's state of Colorado, Tony P. Michael, who, contention was an afterthought.

being by me first duly sworn according to The refusal of the court to allow the note law, upon oath deposes and says that he is from Howie to Michael to go in evidence is one of the defendants in the above-entitled urged as error. This may be very briefly action; that Frank Deihm is another of the disposed of. Unless the alleged agreement defendants therein, against whom judgment contended for by Michael was clearly estab- has, as he is informed and believes, been lished beyond controversy, it was inadmissi- i rendered; that on or about the 17th day of ble for any purpose. It was not made to, nor March, A. D. 1887, on board of a Union the property of, the mining company. The Pacific passenger train, near Point of Rocks, consideration for the note did not go from in the county of Sweetwater, Wyoming, the the company, but from the individual. The same Frank Deihm, who is a defendant in contract sought to be set up contradicted the the above-entitled action, as aforesaid, denote. The latter was to pay money to the in- parted this life, dying, as he is informed dividual, the former to haul for the company and believes, suddenly from some ma lady to pay the note to the individual. The con- resulting from an excessive use of intoxicattract contended for could only have been a ing drinks; that, as affiant is informed and new one,-a novation,-in which all three par- believes, no administrator or executor was ties must have participated and agreed. It ever appointed for the administration and is claimed that Michael was the manager of settlement of the estate of the said Frank the company, in charge of its affairs; conse- Deihm, deceased; and that, as he is in. quently that the transaction was, in effect, formed and believes, some relatives of his with the company. If he was the manager, reside in the city of Cincinnati, in the state and in charge, and the money was to be re- of Ohio, but what particular relation they

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