or of an interest therein. If done under and in pursuance of the contract, and acquiesced in by the parties, it was as binding upon them as though the fee to the mine had been conveyed directly to the defendant. If A. agrees to purchase for B. 1,000 bushels of wheat, at a given price per bushel, but only succeeds in purchasing one-half of that quantity, B. is not bound to accept it under the contract; but, if he does so, he must pay for it, and most certainly A. could not afterwards object that the contract did not bind him. In the present instance plaintiff under the contract might have insisted that an entire mine should be purchased, and that the legal title should pass to defendant; but if instead thereof defendant under the contract purchased, not the whole, but a onefourth interest in a mine, the ownership of which was evidenced, not by the legal title, but by certificates of stock showing a beneficial interest, and plaintiff saw fit to accept and did accept it in fulfillment of the contract, it does not lie with defendant to complain, or to evade his obligation, because he has not complied more strictly with his contract.

The complaint does not in precise language aver that the stock was purchased "at prices mutually satisfactory to the parties," as expressed in the agreement. It does, however, charge "that the purchase by the defendant of said stock and said interest in said mine and mining property was made under and in pursuance of and in accordance with the agreement between the plaintiff and defendant, as set forth in paragraph one of this complaint." If made in accordance with that agreement, it must have been at a price mutually satisfactory to the parties. It further charges that in pursuance of the agree ment plaintiff and defendant immediately began to operate said mine. These and other allegations indicate that the price was satisfactory to plaintiff, as the fact of purchase indicates it was to defendant, and, in the absence of a special demurrer, was sufficient.

There was evidence sufficient to support the verdict. To comment upon it at length would be productive of no good results. It was conflicting upon the vital question as to whether the purchase of the stock in the Taylor Mine was made pursuant to the contract, and for the joint benefit of plaintiff and defendant, as in the contract provided, or independent of that contract, and, unless some error of law has intervened fatal to the verdict, it must stand.

By far the most serious question involved in the case arises under the instructions of the court to the jury. The fourth and sixth instructions given to the jury at the request of plaintiff are as follows: "(4) It is admitted that the defendant, Chapman, did not purchase the whole of the Taylor Mine or of the stock of the Idlewild Gold Mining Company. It is claimed by Dennison that Chapman purchased one-half of the stock of

said company, and it is admitted by Chapman that he purchased one-fourth of the stock. You are instructed that Dennison's rights or interests in any mine obtained by Chapman within ninety days from the date of the agreement did not depend upon Chapman's obtaining the whole mine. Chapman could not defeat Dennison's rights by purchasing only an interest, be it half or quarter, in a mine. If the interest, whatever amount it was, was purchased in pursuance with the agreement between Dennison and Chapman, then Dennison was entitled to one-fourth of Chapman's interest, whatever that might be." "(6) As before stated to you, Dennison claims in the complaint that Chapman bought fifty thousand shares of the capital stock of the Idlewild Gold Mining Company, and that, while twenty-five thousand shares were taken in his brother's name, his brother was but the nominal owner of it. It is admitted by the defendant, Chapman, that he bought twenty-five thousand shares. If you find from the evidence that the defendant, Chapman, entered into that mining venture, and purchased the stock in pursuance with the agreement between himself and Dennison, then you are instructed that Dennison would be entitled to at least one-fourth of twentyfive thousand shares of the stock of the said Idlewild Gold Mining Company; that is to say, he would be entitled to six thousand two hundred and fifty shares. It is admitted by Chapman that this stock is of the value of $2 per share, or $12,500 in all." The court also gave the second instruction asked by the defendant, which is as follows: "I instruct you that upon the written contract contained in this complaint the plaintiff is not entitled to recover anything for the Idlewild stock, unless there was some other and a further agreement between them by which the plaintiff would be entitled to the stock. In other words, the contract of September 2, 1889, contemplated the purchase of a mine, and does not apply to and is not applicable to the purchase of these shares of stock. Therefore,

unless you are satisfied by a preponderance of evidence that there was another and different agreement entered into between the plaintiff and the defendant in addition to the contract of September 2, 1889, it will be your duty to find that the plaintiff has not been damaged in any sum or amount whatever by reason of the failure of the defendant to deliver to him shares of the Idlewild stock." It is quite apparent that there is a conflict in the instructions given on behalf of plaintiff and that given at the request of the defendant. The former instructed the jury, in substance, that if the stock or an interest in the Taylor Mine was purchased under and pursuant to the contract between the parties of September 2, 1889, plaintiff was entitled to a one-fourth interest therein; while the instruction given on behalf of defendant informed the jury that the agreement of September 2, 1889, contemplated the purchase of

a mine, and is not applicable to the purchase of stock in a mine, and that, unless there was another and different agreement entered into between the parties in addition to the original contract, plaintiff could not recover on account of the nondelivery of the stock. We are of opinion the instructions on behalf of the plaintiff were correct, and that in favor of the defendant erroneous. As before stated, in substance, if the purchase of the stock was made under and pursuant to the contract, and accepted by plaintiff as such compliance, it is not perceived that any other further or additional contract was necessary. It may well be that in the event of delivery of the stock some arrangement would have been necessary to secure to defendant the dividends until he was reimbursed for his outlay on account of the interest to be trans ferred. So it would have been had defendant purchased the mine and conveyed a fourth interest to plaintiff at the end of one year, with a proviso that defendant was to be reimbursed from the output of such mine. These were details which under the agreement the parties could have carried out, or failing in which the law would have determined for them. The view of defendant, as detailed by plaintiff in his testimony, seems rational. He said, according to plaintiff's testimony: "Now, we will go up there and take a look at it, and if you think well of the way I put this to you, and think well of the mine, all right, and we will vary our contract to suit the case exactly, if it needs any modification; but I cannot see that it does not apply to this case. You may have to abate your demand on me. I have not got all of the mine now, and you will have to have one-fourth of what I have." Plaintiff testified that upon visiting and examining the mine he was pleased with it, and that they then proceeded to develop it, etc. The erroneous instruction was in favor of appellant, and it has been repeatedly held by this court that a conflict in instructions which could not operate injuriously to appellant is not ground of reversal. Estate of Gharky, 57 Cal., at page 280; People v. Velarde, 59 Cal., at page 464; People v. Smith, 59 Cal. 601; People v. Ah Luck, 62 Cal. 503; People v. Turcott, 65 Cal. 126, 3 Pac. 461. Again, a party cannot except to instructions given at his own request, and in this case did not attempt to do so. Mining Co. v. Baker, 70 Cal. 572, 8 Pac. 305, and 11 Pac. 654. It follows that as the instructions excepted to were proper to be given, and as the erroneous instruction was in favor of appellant, and given at his request, and could not have injured him, the judgment should not be reversed for that cause. The instructions, taken together, were as favorable to the defendant as the law would warrant.

Of the instructions asked on behalf of the defendant, and refused, it need only be said some of them were in substance embodied in instructions given, others not applicable to

the issues made by the pleadings and the evidence thereunder, and still others not admissible under any state of pleadings applicable to the case. The pivotal point in the case was as to whether or not the purchase of the stock was made under and pursuant to the contract of September 2, 1889. That question determined in favor of the plaintiff, as it was by the verdict, and the recovery is as little as could reasonably be expected from the evidence. The judgment and order appealed from should be affirmed.

We concur: VANCLIEF, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(20 Colo. 519)

MCCANDLESS v. GREEN et al. (Supreme Court of Colorado. Jan. 2, 1895.) JURISDICTION OF SUPREME COURT-ESTOPPEL.

1. A proceeding to enforce a mechanic's lien does not involve a freehold, within the proviso of Sess. Laws 1891, p. 118, excepting suits involving a freehold from the general provision that suits for less than $2,500 are not appealable to the supreme court.

2. The constitutionality of the mechanic's lien law cannot be attacked in a suit to enforce a lien not involving $2,500, in order to give the supreme court jurisdiction under Sess. Laws 1891, p. 118, on the ground that the law impairs the obligation of the contract in allowing a subcontractor to file a lien, where his right to so file a lien was recognized in the contract between the original parties.

Appeal from district court, Fremont county. Action by Mosier T. Green and others against James A. McCandless. From a judgment of the district court for plaintiffs, defendant appeals. Appeal dismissed.

C. D. Bradley and Thomas Macon, for appellant. Benedict & Phelps, for appellee.

The

HAYT, C. J. This is an action, brought by appellees, Green and others, to enforce a mechanic's lien against the property of appellant, McCandless. In the district court judgment was rendered in favor of plaintiffs for the sum of $907.76, and the sum declared a lien against certain property of the appellant. The first question presented here for consideration has reference to the jurisdiction of this court to review the proceeding. first section of the act creating the court of appeals reads as follows: "No writ of error from, or appeal to, the supreme court shail lie to review the final judgment of any infe rior court, unless the judgment, or in replevin, the value found exceeds two thousand five hundred dollars, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a frauchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case. Provided, further,

that the foregoing limitation shall not apply to writs of error to county courts." Sess. Laws 1891, p. 118. As the judgment in this case is for less than $2,500, if the jurisdiction of this court is to be maintained, it must be under the foregoing proviso with reference to freeholds and constitutional questions. In the case of Wyman v. Felker, 18 Colo. 382, 33 Pac. 157, it was said that "a freehold is never involved, within the meaning of the statute, unless the primary object of the suit is the recovery of the freehold estate, or when the suit, if prosecuted to judgment, will, as between the parties, result in one gaining or the other losing the estate." In the case of Clement v. Reitz, 103 Ill. 315, it was held that a proceeding to enforce a mechanic's lien against real property did not involve a question of freehold. Is the construction of a provision of the national or state constitution necessary to a determination of the case? This particular part of the act received the careful attention of this court in the case of Trimble v. People, 19 Colo. 187, 34 Pac. 981. It was there held that, to invoke jurisdiction under this proviso, it must appear from the record that the decision of such question is necessary to a determination of the case, and also that the question itself is fairly debatable, and not based on mere assertion. Referring to appellant's briefs to ascertain the nature of the constitutional objection interposed, and we find in the first a few lines only are given at the close to a constitutional question, while in the brief subsequently filed it is stated that the two parts of the statute are easily harmonized, and that it is not necessary to attack the constitutionality of the act in this case. In neither of these briefs is it claimed that any particular section of the mechanic's lien act is unconstitutional, nor is any particular provision of the constitution of the United States or of the state of Colorado pointed out as inhibiting the legislation in question. The character of the constitutional objection which counsel wish to interpose in this case can only be inferred from the concluding sentence of the first brief, which is as follows: "A law of this character is clearly against public policy and one that impairs the obligation of contracts." If it is meant by this that legislation conferring a right upon subcontractors to file a lien within a short time after they have ceased work, or after the last materials are furnished, is against public policy, no decision has been cited in support of such contention, and we know of none, while the decisions are numerous to the effect that such a law is not only valid, but beneficent, and should be upheld. And certainly it cannot be successfully claimed in this case that the law impairs the obligation of the contract, as the written agreement entered into between appellant, McCandless, and Contractor White specially provides that the contractor should, if required, give good and sufficient evidence that the premises were free from all liens

v.39p.no.1-5

and claims chargeable to the contractor as a condition precedent to payment, and reserves to the owner the right to retain out of any payment an amount sufficient to completely indemnify him against any lien. Hence it appears that the right of subcontractors to file liens was especially recognized in the contract between the original parties. It must not be inferred from what has been said that, in the absence of such provisions, the question of the unconstitutionality of the act in this respect could be successfully maintained. In this case it is clear that this court has no jurisdiction to entertain the appeal, and it is accordingly dismissed. Appeal dis missed.

(20 Colo. 506)

BAKER v. BARTON et al. (Supreme Court of Colorado. Jan. 21, 1895.) JURISDICTION OF SUPREME COURT-CONSTITUTIONAL QUESTION-FALSE IMPRISONMENT

JUSTIFICATION.

1. The supreme court has no jurisdiction of a writ of error to a judgment, not a money judgment, in an action not relating to a franchise or freehold, or involving a constitutional question.

2. The rule that, in actions for false imprisonment and the like, defendant cannot give proof of justification without pleading it, is not a constitutional requirement, but merely a rule of pleading, which may be changed by the legislature.

Error to court of appeals.

Action by Alvah L. Baker against Elias R. Barton and others. From an affirmance by the court of appeals of a judgment for defendants, plaintiff brings error. Writ dismissed.

J. F. Tourtellotte and W. T. Hughes, for plaintiff in error.

PER CURIAM. This action was commenced by plaintiff in error, Alvah L. Baker, against Elias R. Barton and others to recover damages for an alleged illegal arrest and false imprisonment. The trial in the district court resulted in a verdict and judgment for the defendants. To this judgment a writ of error was sued out from this court before the passage of the act creating the court of appeals, but, after the taking effect of that act, the case was taken to the court of appeals by stipulation of the parties. When the case came on for hearing in the court of appeals, the judgment of the district court was affirmed. See Baker v. Barton, 1 Colo. App. 183, 28 Pac. 88. The action does not relate to a franchise or freehold, and, as no money judgment has been rendered in the case, this court is without jurisdiction to entertain the case upon writ of error to the latter judgment. Trimble v. People, 19 Colo. 187, 34 Pac. 981; Hurd v. Carlile, 18 Colo. 461, 33 Pac. 164; Wyman v. Felker, 18 Colo. 382, 33 Pac. 157; McCandless v. Green (Colo. Sup.) 38 Pac. 64. The contention of counsel, as we understand it,

is that the district court erroneously permitted the defendants to justify the acts complained of, although no justification was pleaded, thereby depriving the plaintiff of a right universally recognized in the practice, and protected by the constitution, as it is said. We need not examine the record for the purpose of determining whether or not error in this regard intervened, for, if such error be shown, it would not give this court jurisdiction to review the judgment. As a general rule, in this character of actions, if the acts complained of are actionable, and are admitted or established, good practice requires a plea of justification to admit proof in bar of the action; but this is a rule of pleading subject to change at any time by the legislature. It is not a constitutional requirement. There is, therefore, no constitutional question in the case to give this court jurisdiction, and the writ of error must be dismissed. Writ dismissed.

(5 Colo. App. 479)

LOUTSENHIZER v. FARMERS' & MERCHANTS' MILLING CO. (Court of Appeals of Colorado. Jan. 14, 1895.) CONTRACT OF SUBSCRIPTION-BONUS TO MANUFACTORY-RIGHT TO BRING SUIT.

1. In an action on contract of subscription which, after reciting the advantages to be gained from building a flour mill in the neighborhood, and showing that it was the intention of the signers that a corporation should be organized to carry out the scheme, fails to state the corporate name, the amount of capital stock, or by whom the corporation shall be organized, but states that the signers agree to pay to a "committee" to be thereafter selected a certain amount for the purpose of building the mill, a complaint by a corporation, subsequently organized, by which the mill is built, which fails to show that the corporation was by agreement substituted for the committee, or that in some way the authority to receive the money was transferred to it, is demurrable.

2. Allegations that such contract was a promise to pay defendant, and was a subscription to the capital stock of the corporation, are ineffective, inasmuch as the agreement shows on its face that it was neither.

Appeal from district court, Montrose county.

Action by the Farmers' & Merchants' Milling Company against O. D. Loutsenhizer to recover on subscriptions to stock. From a judgment for plaintiff, defendant appeals. Reversed.

N. G. Clark and F. D. Catlin, for appellant. Sherman & Twitchell, for appellee.

THOMSON, J. The only question presented by the record in this case relates to the sufficiency of the complaint, of which the following is a copy: "Complaint. The Farmers' and Merchants' Milling Company, Plaintiff, v. O. D. Loutsenhizer, Defendant. Plaintiff, complaining of defendant, alleges: (1) That plaintiff is a corporation organized and existing under the laws of the state of Colorado, and as such doing business at

Montrose, in Montrose county, Colorado. (2) That in contemplation of the corporation of these plaintiffs, and for the purpose of constructing, owning, operating, and maintaining the flouring mill then contemplated, this defendant, with others, on or about the 20th day of October, A. D. 1887, at Montrose, Colorado, became a subscriber to the stock of plaintiff company by signing an agreement in writing, of which the following is a copy: 'Synopsis of the Plans of the Necessity Flouring and Grist Mills. The valley of the Uncampahgre has been demonstrated to be very productive in wheat, barley, and corn growing. That the success of the farmer, the professional man, merchant, and common laborer all depends upon the productions of the natural resources of this valley. That in order that the local farmer may be prosperous, and induced to cultivate his farm, he must have a market which will give him the highest price for his product. The object of this enterprise is to give the local ranchmen all that this enterprise can afford, at the same time charging them a reasonable profit, to be determined by the subscribers. That this shall be a stock concern,-each man receiving full paid up stock for what he pays, and no stock to be sold for less than dollar for dollar, and no stock to be issued except as the money is actually paid as aforesaid, and only for such a sum as may be determined by the subscribers hereof as necessary to build and repair said mills, and to buy grain. That the object of this enterprise is, primarily, to furnish the local farmer with a good market for his grain; 2d, to exchange him flour and grist for his grain, for what it is really worth; 3d, to operate said mills after accommodating the local purchasers, -to run said mills as a merchant mill, and buy and manufacture flour, meal, etc., so as to make the stock valuable as an investment; 4th, to build up the grain-growing interest generally of the valley, which helps all our people, of every trade and profession. These details of the plans and methods shall be arranged by the subscribers on a meeting to be hereafter called. To build the Necessity Flouring and Grist Mills at Montrose, Colorado, we, the undersigned, for and in consideration of the efforts now being made, and to be hereafter made, to build the flouring and grist mills at Montrose, Colorado, do hereby agree to pay a committee, to be hereafter appointed by the subscribers hereof, the amount set opposite our respective names, on demand; and this obligation shall be as binding as if it were a promissory note, as the projectors of this enterprise are going to great labor and expense in the premises, and incurring obligation on the faith hereof.' (3) That, among many others, this defendant signed and executed said agreement, and subscribed and set opposite his name the sum of two hundred and fifty dollars, which amount he thereby agreed to pay to

said company, as is set forth in said agreement of subscription. (4) That thereupon, and upon the basis of subscriptions and agreements of defendant and his cosubscribers, as aforesaid, plaintiff company was duly formed and incorporated by this defendant and his cosubscribers, as such subscribers to said object, under the corporate name and style of the Farmers' and Merchants' Milling Company, this plaintiff, and thereupon the Necessity Flouring and Grist Mills mentioned in said subscription were constructed by defendant and his cosubscribers, under the corporate name and style of the Farmers' and Merchants' Milling Company, this plaintiff, in pursuance of said subscription, and at great cost and expense, and that all the agreements and provisions of said subscription have been fully performed and carried out by said cosubscribers and the plaintiff, duly formed for such purpose as aforesaid, and plaintiff is ready and willing to issue stock to defendant as per said agreement, and said money agreed to be paid by defendant is necessary for the carrying out of the plans of said agreement. (5) That defendant has not paid his said subscription, or any part thereof, and that payment was duly demanded of defendant on or about January 1, 1888, and that by reason thereof there is now due plaintiff from defendant the sum of two hundred and fifty dollars, together with interest thereon from January 1, 1888, at the rate of ten per cent. per annum. (6) That the amount involved, and for which relief is sought in this action, does not exceed the sum of two thousand dollars. Wherefore, plaintiff prays judgment for $250, together with interest thereon from January 1, 1888, at the rate of ten per cent. per annum, and for costs of this suit, and general relief."

The preliminary portion of the instrument sued on is in the nature of a prospectus, setting forth a project, and the advantages to be realized from its consummation. It may be inferred from its language that a corporation was contemplated for the purpose of carrying into effect the proposed scheme; the subscribers to the instrument to determine the amount necessary for the purpose, and to arrange details of its plans and 'methods. The prospectus is quite general and indefinite. The intended corporation is not named, or the amount of its capital stated; and it is uncertain by whom it was to be organized, or who should constitute its membership, whether the subscribers, or others not mentioned. This is followed by the contract, the enforcement of which is sought against the defendant. This contract, as far as it goes, is complete within itself, and is not elucidated much by what precedes it. It seems to have little connection with the introductory matter, and might be entirely detached without suffering any loss of meaning, or affecting any remedy upon it. The

measure and character of the defendant's liability, as a party to it, must be determined from the contract itself. On its face it is not a contract with the plaintiff, or for the benefit of the plaintiff. It is not a subscription to the capital stock of any company, or an agreement for future subscription to such stock. Its consideration is not the delivery of any stock to the subscribers, but is wholly unconnected with any scheme of incorporation. It is an absolute and unconditional promise by its signers to pay the several amounts subscribed by them, for the purpose of building the Necessity Flouring & Grist Mills, to a committee whom they should thereafter select. What disposition the committee should make of the money, when paid,-whether the building should be done under its supervision, and the money disbursed by it for the purpose, or whether it should turn the money over to some other person or persons, who should have charge of the construction of the mills, the contract does not provide. The signers probably left this matter open for instructions to be given by them to the committee when it should be appointed. They promised to pay the money to the committee, and not to any one else, and it is presumed that they had some object in thus reserving to themselves the control of their funds by means of a committee to be chosen by them, and answerable to them. The complaint does not state whether a committee was ever selected or not. If there never was a committee, no action could be maintained upon the promise, for want of a payee, unless, by an arrangement subsequently made, some one else was substituted for the committee. If a committee was appointed, the money was payable to it, and there could be no right of action upon the promise, outside of it, unless its authority to receive the money was in some way transferred to another. It may be either that by a binding agreement among the parties. afterwards made, the committee was dispensed with, and the plaintiff substituted for it, or that a committee was appointed, and its rights transferred to the plaintiff in such way that the defendant was bound by the transfer, but nothing of the kind appears. The fatal defect in the complaint is its failure to show how any cause of action upon the contract ever accrued to the plaintiff. Apparently, the necessity of some such showing was recognized, and an attempt made to supply it by alleging that the contract was a promise to pay the plaintiff, and was a subscription to the plaintiff's capital stock; but those allegations do not help matters, because, upon its face, it was neither. The contract speaks for itself, and it is useless to aver that it is what it is not. The judgment will be reversed, with leave to the plaintiff to amend its complaint as it may be advised. Reversed.