on a petition duly signed, and on a report adequately made, the board considered the matter, and, having considered it, ordered the road established, a legitimate inference might be drawn that the board acquired its jurisdiction in a statutory way, and was duly authorized to proceed. These questions, however, are purely matters of speculation, for the order itself recites nothing. Under this circumstance, the balance of the record must be legitimate evidence for the purpose of ascertaining what the board did, and on what basis it proceeded. We do not conceive that the production of the record as an entirety constitutes a collateral attack in the language of the books, even though portions of the record may be produced by the plaintiff and the balance may be offered by the defendant. The evidence would seem to be entirely legitimate, and to give the defendant the right to furnish anything else found in the record which may show that the board lacked authority to proceed. The authorities are undoubtedly divided on this question, though the diversity springs, in our judgment, more largely from the neglect on the part of the courts to limit and distinguish the case immediately decided from the others, and to confine their judgment to the exact issue involved in the particular suit. The whole subject is very exhaustively reviewed in Lewis, Em. Dom. C. 14. Disregarding any apparent exceptions, and the exceptions are more apparent than real,-it may be safely stated that, to authorize a board of limited jurisdiction and authority to proceed, a statutory petition must be presented. By this we mean there must be a petition, signed by the requisite number of people; though whether the petition itself must in all other respects be in exact conformity to the statute, we do not determine, since the cases are not in harmony on this matter. They do, however, unite on the proposition that a petition must be filed, though, doubtless, some of them go so far as to hold, if the order recites the fact of the petition, the matter may not be otherwise questioned. The present case is not brought at all within the scope of these conflicting authorities. It is a naked case of an order reciting nothing, but resting for its validity upon a petition which, on its face, shows a failure to observe the statute. The facts in the case and the inspection of the record enable us to decide whether the plea of nul tiel record has been sustained. Since it was plainly settled by the record that the board was without jurisdiction to establish a road, we conclude its order was void, and a lawful highway has not been proven.

There is possibly enough in the order, if sufficiently supplemented by other proof, to justify the conclusion that, even though there may have been a jurisdictional defect in the proceedings, it was cured by the acts of the parties, and the road can be taken to be a duly-established public highway. The evi

dence is not sufficient to enable us to pass on this question. There are one or two authorities in this state which furnish a basis for the suggestion. Water Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565; Railroad Co. v. Allen, 13 Colo. 229, 22 Pac. 605. The order recites the finding of the viewers as to the value of the land taken, and states that Zuloff was the owner. The clerk is ordered to draw a warrant for the damages, and it may be an examination of the record will disclose the fact of Zuloff's ownership when the order was made, and that he accepted the warrant in satisfaction of his claim of title. The two authorities cited seem to indicate such an acceptance would cure all the irreg ularities and defects in the proceedings, estop the owner from any claim of title, and it might, if the road is shown to have been devoted to public use, be operative against the grantees. This matter is suggested by the arguments and by the record; and, while making these concessions, we do not wish to be understood as directly deciding them until the evidence on the subject is produced, and the matter comes up for discussion on this question. We simply say these things may be true, but we do not care at this time to consider or determine them. For the error which the court committed in excluding the testimony offered by the defendants, the case must be reversed. The court below will permit the plaintiff to amend his pleading in such manner as he may be advised, and to grant a similar privilege to the defendants by way of amendments to their Reversed.

answer.

(6 Colo. App. 21)

MANNERS v. FRASER. (Court of Appeals of Colorado. March 11, 1895.)

REVIEW ON APPEAL-EXCEPTIONS TO JUDGMENTMECHANIC'S LIEN-SUIT FOR ENFORCEMENT -AMENDMENT OF ANSWER.

1. Whether the evidence supports the judgment will not be considered, in the absence of an exception to the judgment.

2. In an action to enforce a mechanic's lien, where defendant set up a written contract, and failure of performance by plaintiff, if it appears that essential elements of the contract were oral, defendant may amend his answer by inserting them.

Appeal from district court, Pueblo county. Action by J. T. Manners against W. G. Fraser for work performed under a contract. From a judgment for defendant, plaintiff appeals. Affirmed.

Betts & Vates, for appellant. J. E. Rizer, for appellee.

BISSELL, P. J. W. G. Fraser contracted with the owner of a piece of property in Pueblo to make certain improvements on an existing building. The material part of the contract with which we are concerned relates to the elevation of the walls, the alter

ation of the windows and doors, to correspond with another part of the building, in the rear of that on which the alterations were to be made. Subsequently, Fraser and the appellant, Manners, negotiated about the brickwork necessary to raise the fire wall, elevate the windows and doors, and a little other masonry incidental to these things. During the progress of the negotiations between Fraser and Manners, Manners went to Fraser's office to make a bid on the work. There is considerable controversy between the parties as to what happened and about what was ultimately done. It is insisted on one side that, when Manners put in his bid, he looked at the specifications which were in Fraser's office, which provided that the doors and windows were to be raised to the level of those in the rear part of the building, and, with full knowledge of this fact, he offered to raise the windows, build fire walls and front lintels, for $110. Much of this Manners denies, and insists that his bid was for repairs, and raising windows, front lintel, and "fire wall, four feet high." He insists that his original bid was for $125, but that it was reduced by the negotiation to $110. He likewise contends that the four feet related to the windows, as well as to the fire wall. It may be said this would not be the natural limitation and construction of the language of his offer. He went to work, and, after he had been working some little time, reached the windows; and, while he was at the point of turning the arch of one to complete its elevation, it was discovered by the architect who had drawn the plans that the windows had not been raised on a line with the others, and needed to be put up nearly two feet more. The architect directed Manners to increase the height, but Manners declined, on the ground that it was not within the terms of his bid. Fraser came along, and there was some discussion between them as to what the contract was. It is insisted, on one side, that Manners went to the office, and looked at the bid, which contained no statement about the height, and then went back to work. This Manners denied, and he insists that, when Fraser declined to permit him to go on with the work under his bid, he stopped, as he had a right to do. When he abandoned the work, he had earned a little less than $40. He afterwards filed a lien on the building, and brought this suit to collect his money. In the original answer it was stated that Fraser entered into a contract with Manners whereby he had agreed to do certain work, which was specified, for a definite sum. At the trial, what Fraser claimed to be the written bid put in by Manners was offered. This contained nothing about any specifications, and no data other than the general statement that he was to raise 12 windows, and build the fire wall and lintels. It was urged that the defendant had the right to show what had happened respecting those matters

which were not stated in the writing. There seemed to be some question concerning it, and, on application, the court permitted an amendment to the answer, so that the allegation would amount to a statement that the work was to be done according to specifications prepared by the architect. Of this the appellant complains. An amended replication was tendered, which contained a good many matters other than what was filed in the original pleading, and the court refused to permit it to be filed as drafted, but did permit a part of it to stand. The case was tried to the court, without a jury, who found for the defendant, and Manners appealed.

As is manifest from the record, the case has been several times tried, and, notwithstanding the magnitude of the controversy, it is important that it should end with the judgment, unless some radical error was committed by the trial court. As is usual, it is insisted that the evidence does not support the judgment, and that there is lacking in the record some proof essential to the result. It would be well to state in this connection that, according to the defendant's plea, he was put to considerable expense to complete the work. The court must have found with him in this particular, since it is evident that Manners did work of some value. We can better dispose of this partic ular objection by referring to the circumstance that there is no exception to the judgment. It has been repeatedly decided by both the appellate courts in this state that a party must preserve his objection in the proper form when he seeks to have the case reversed because the evidence does not warrant the judgment. We did not, however. content ourselves with this rule, but read the record. This fully convinced us that on all questions of any consequence there was a conflict in the testimony, and there is so much to be found to support the court's conclusions that in no event would we be inclined to interfere with them.

We do not concede that the court committed any error in permitting the defendant to amend his answer by inserting the allegation that the work was to be done according to the specifications prepared by the architect. There are two answers to the contention. In the first place, it is tolerably clear that the evidence on this subject was admissible under the original answer. If it was found by the court that the contract was not wholly in writing, but that some of its terms rested in parol, it was entirely within the rules of evidence to permit the defendant to prove all of its elements. Even if this were not true, the amendment did the plaintiff no harm, and he took no advantage of it, so as to be able to raise the question here. In respect to matters of this description, it is well settled that a party must show he has been affected in some substantial right if he would complain. The

supreme court has clearly established the practice in such matters. If the defendant conceives that, when the application is made, he will be harmed by the order, he must ask for a postponement, or seek in some other way, if any be feasible, to preserve and protect his rights. Gwynn v. Butler, 17 Colo. 114, 28 Pac. 466.

A sufficient amendment to the replication was permitted to enable the plaintiff to present any issue necessary for the preservation of his rights, and no evidence which he offered was rejected because not within the scope of the pleadings. He was therefore unharmed by the exclusion of a portion of his plea.

We do not undertake to decide what is indispensable to entitle a party to abandon his agreement, and recover on a quantum meruit for what he has done. We should have very grave doubts whether Manners was entitled to recover at all for what he did. We do not care, however, to enter upon this discussion, and demonstrate that the evidence establishes an agreement on his part to do certain work in a specific manner, and a failure on his part to perform. We content ourselves with saying that there is enough in the record to warrant this conclusion. There is evidence from which the court may have concluded the defendant was damaged beyond the amount which Manners had earned. Either conclusion necessitates the affirmance of the judgment. Under these circumstances, we are not at liberty to disturb it.

The trial court committed no errors which compel us to question his conclusions, and the judgment will accordingly be affirmed. Affirmed.

WITNESS

SET-OFF-PARTNERSHIP - LIABILITY
JUDGMENT-MOTION TO VACATE.

1. The amount of a note payable to a partner individually cannot be set off by him against a partnership indebtedness, in an action thereon by the maker of the note.

2. A partner seeking to set off an individual claim against a partnership indebtedness in a suit by an administrator against the firm is incompetent, under Gen. St. § 3641, to testify as to an agreement with the firm and deceased whereby the debt to deceased was to be applied on deceased's indebtedness to him.

3. A motion to vacate a judgment on the affidavit, unsupported by proof, of one of the defendants that another defendant was dead at its rendition, is properly denied where the attorney making the motion entered. the appearance of such defendant, and no suggestion of his death was made until after the judgment was entered.

Appeal from district court, Lake county. Action by Neil McMillen, administrator, against John W. Rogers and others, partners under the name of Continental Chief Mine.

From a judgment for plaintiff, defendants appeal. Affirmed.

Appellee, the administrator of the estate of William J. A. Howie, brought suit to recover from appellants the sum of $1,224.88, alleged to have been due Howie at the time of his death. Appellants were mining the Continental Chief Mine. Howie was engaged, with teams, in hauling coal to the mine, and ore from it. He died on the 14th day of October, 1892. At the time of his death it is alleged that there was due and owing to him for such services for the month of September and the 14 days of October the amount for which the suit was brought. Previous to September 1st, settlements had been had, and all accounts adjusted. The complaint was in the ordinary form. The defendants, in answer, admitted the death of Howie, the appointment of appellee as administrator, and that they the defendants were doing business under the name of Con tinental Chief Mine; denied generally the other allegations of the complaint. A jury was waived, and a trial had to the court. At the commencement of the trial it appears to have been admitted in open court "that if Howie, or his administrator, are entitled to recover against the defendants any amount, that amount will be $1,217." The trial resulted in a judgment for the plaintiff for $1,214.43, from which an appeal was prosecuted to this court.

A. J. Sterling, for appellants. Geo. S. Phelps and N. Rollins, for appellee.

REED, J. (after stating the facts). We cannot understand what, if any, influence or effect the stipulation in open court that the amount of the recovery should be $1,217, if anything, had upon the trial of the case. Such a stipulation would naturally be construed as fixing the amount in case the legal question or questions presented should be determined in favor of the plaintiff, leaving only legal questions to be determined upon the trial; but it does not seem to have been so regarded by court or counsel, and we are confronted with many pages of evidence, and elaborate columns of figures, for apparently no purpose except to establish the concession made as to the amount in the first instance. The result reached having only varied from the amount conceded $2.57, it may be regarded as establishing the amount of damage. The small difference having been found for defendants, they cannot complain that the judgment is excessive.

Although the trial was very lengthy, and contested with great zeal and energy, only one question seems to be involved, which may be briefly stated: Whether Michael, one of the defendants' partners, doing business under the firm name of the Continental Chief Mine, could set off a note of Howie, payable to him individually, against the amount due Howie from the partnership. The court

properly found it could not be done, and gave a judgment for the amount admitted to be due. Numerous errors are assigned, but, aside from the general one that the finding was against the evidence, they were principally to the refusal of the court to admit evidence to establish the note as a set-off. The contention was that Howie borrowed money from Michael, for which he gave his note; that it was for money borrowed to purchase teams; and that the work done was done for him individually in payment of the note, and he was to collect from the company. This claim was negatived-First, by the books of Howie, where it was charged to the company; second, by the books of the company, where it was put to the credit of Howie; third, by previous transactions, where, during the existence of the note, monthly payments had been made by the company to Howie direct, for large amounts, while only two or three payments, amounting in all to $300, had been paid by Howie to Michael, and indorsed upon the note. The note bore date January 10, 1890; was for $1,500, payable six months after date; indorsed May 12, 1891, with payment of $100; September 28, 1892, $200. Howie died October 14, 1892. It will be observed that the payment of $200 was made September 28, 1892. The bills for the month of September, as taken from the books, were $889.66, due two days after the payment of $200 made by Howie to Michael, and from another source. Howie was then living, and the sum due from the company on October 1st-$889.66-was not indorsed nor passed to the credit of Michael. The bills for the month of October, until Howie's death, on the 14th, amounted to $214.77. On November 11th-nearly a month after Howie's death-Michael indorsed upon the note $1,217.35 due from the company to Howie, being the balance due upon the note. These facts, though not conclusive, were very strong circumstances tending to show that Michael's contention was an afterthought.

The refusal of the court to allow the note from Howie to Michael to go in evidence is urged as error. This may be very briefly disposed of. Unless the alleged agreement contended for by Michael was clearly established beyond controversy, it was inadmissible for any purpose. It was not made to, nor the property of, the mining company. The consideration for the note did not go from the company, but from the individual. The contract sought to be set up contradicted the note. The latter was to pay money to the individual, the former to haul for the company to pay the note to the individual. The contract contended for could only have been a new one, a novation,-in which all three parties must have participated and agreed. It is claimed that Michael was the manager of the company, in charge of its affairs; consequently that the transaction was, in effect, with the company. If he was the manager, and in charge, and the money was to be re

funded as stated, certainly, unless there were good reasons for taking out and making it an individual transaction, it would have been made a company transaction in the first instance. In a suit by an administrator or any other plaintiff against a partnership, the individual claim of one partner cannot be set off against partnership indebtedness.

The attempt to establish the contract rested entirely upon the evidence of Michael, and was inadmissible, under section 3641, Gen. St., which follows: "That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends, as the trustee or conservator of an idiot, lunatic or distracted person, or as the executor or administrator, heir, legatee or devisee of any deceased person." It is not taken out of the operation of the section by any of the exceptions of the section. Authorities in support of this proposition are unnecessary; the decisions are uniform in this state and in the state of Illinois, where the statute is the same. This also disposes of the supposed errors assigned as Nos. 9 and 15. In each the defendant Michael was incompetent to testify in regard to the matters asked.

The only other assignment of error that need be discussed is the fourth. On the 25th of February, 1893, the court found for the plaintiff, and the judgment was entered, and appeal prayed and allowed. With this entry and the signing and sealing by the judge the bill of exceptions ends. Subsequently there follows an anomalous proceeding. On the 8th day of March following, the following affidavit was made, and handed to the clerk: "Personally came before me, the undersigned notary public, within and for the county of Arapahoe, and state of Colorado, Tony P. Michael, who, being by me first duly sworn according to law, upon oath deposes and says that he is one of the defendants in the above-entitled action; that Frank Deihm is another of the defendants therein, against whom judgment has, as he is informed and believes, been rendered; that on or about the 17th day of March, A. D. 1887, on board of a Union Pacific passenger train, near Point of Rocks, in the county of Sweetwater, Wyoming, the same Frank Deihm, who is a defendant in the above-entitled action, as aforesaid, departed this life, dying, as he is informed and believes, suddenly from some malady resulting from an excessive use of intoxicating drinks; that, as affiant is informed and believes, no administrator or executor was ever appointed for the administration and settlement of the estate of the said Frank Deihm, deceased; and that, as he is informed and believes, some relatives of his reside in the city of Cincinnati, in the state of Ohio, but what particular relation they