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tiff to introduce the entire letter in his own behalf, and this is assigned for error. It is generally true that a party's own declarations are not competent eviderce in his favor, but it is also true that whatever he says at the same time, and upon the same subject, is to be taken together. A portion culled out and isolated from the context is often susceptible of a construction which was never intended. In order that an admission may be understood, all that was said upon the subject at the time must be heard. If part of a conversation of a party is proved against him, he has a right to show the remainder. If the admission is in writing, he is entitled to the production of the entire paper. The effect of the whole may be very different from that of a part, and the court rightly permitted the plaintiff to introduce the letter. Queen Caroline's Case, supra; 2 Whart. Ev. 88 1102, 1103; 1 Greenl. Ev. s 201; Moore v. Wright, 90 Ill. 470. The same course of examination which the court allowed upon the letter was undertaken by counsel upon the original complaint filed in the cause. After proving its verification by the plaintiff, he selected a statement which it contained, and asked the plaintiff if he had not sworn to that. Our observations made in the case of the letter also apply to the complaint, and the court correctly decided the question improper.
The plaintiff testified to certain conversations which he had with Mr. Rose, the husband of the defendant. The evidence was objected to because it was not shown that Rose was the defendant's agent, or that he had any authority to speak for her. We are unable to discover any proof of agency, but most of this evidence was stricken out on motion of the defendant; and it was all-the portions stricken out, and what remainedunimportant and immaterial. The witness protested that he could not recollect what was said, but that the substance was that Mr. Rose wanted him to go and see the defendant, and try to make some arrangement with her to work for her. This is what the witness repeated in different forms at different times, and, presumptively, the reason why it was not all stricken out is that no request for that purpose was made. The contract testified to was made entirely with the defendant herself, all the conversations concerning it were had with her, and no conversation with her husband was shown, which had the remotest bearing upon any subject connected with her liability. The conversations objected to could not possibly have had any effect, for good or evil, upon either side of the case, and the testimony was therefore harmless.
The last question to be considered relates to the giving and refusing of instructions. Those requested by the defendant were, in the main, unobjectionable. The only critj. cism to which they might be subjected is that they did not limit the verdict which
the jury might return to the amount claimed in the complaint. They would have authorized the jury to find from the evidence the reasonable value of the services, whatever that value might be, and there was some evidence that they were worth more than was asked. This defect was supplied in the instructions given. These instructions were substantially the same as those requested. They embraced everything to which the defendant was entitled, and fairly stated the law applicable to the case. Exception is taken to the introductory portion, which is a synopsis of the plaintiff's testimony concerning the alleged contract with the defend. ant. It assumed nothing as to the facts. It was a bare statement of what the plaintiff, in his testimony, claimed was the contract between himself and the defendant, without comment, or any expression which the jury could construe as indicating an opinion of the court. This was followed by a like and equally full statement of the defendant's side of the case, as answered by her. Both statements were fair, and calculated to give the jury an intelligent idea of the issues involved. It is as important that the jury should have a definite understanding of the issues as that they should be correctly instructed in the law. The jury were then instructed that it devolved upon the plaintiff to prove his allegations by a preponderance of the evidence, and, if they believed that the evidence preponderated for him, they should find in his favor the reasonable value of his services, not exceeding the amount claimed in his complaint, but if, on the other hand, they believed from the evidence that the facts were with the defendant, they should find for her. Their attention was directed to the evidence as the source from which their conclusions should be drawn. We cannot see any impropriety in the statement of the controversy, or error in the instructions. There was irreconcilable conflict in the testimony, but in extracting the truth from it, and finding what the facts actually were, the responsibility was with the jury, and what they found is a final settlement of the dispute. The judgment will be aflirmed. Affirmed.
(5 Colo. App. 454) MOULTON v. MCLEAN et al. (Court of Appeals of Colorado. Jan. 14, 1895.) COUNTY TREASURER - Deposit in BANK - LEGALITY-Suit Ox INDEMNITY BoxD-PAR
TIES PLAINTIFF. 1. Mills' Ann. St. 1219, forbids any public officer to "Ioan out." with or without interest, any money received by virtue of his office; and section 1250 makes a contract by such officer with any person, whereby such officer is to "derive any benefit" from the deposit of public funds with such person, void; and Const. art. 10, § 13, on which such statutes are based. makes it a felony for public officers to make any profit, directly or indirectly, out of the public money. Held, that the statutes do not
apply to a deposit in a bank, by a county treas- or to his order, from time to time, as the urer, of county funds, repayable on demand,
same may be required, then the above obliwithout interest. 2. A county treasurer, required by Mills'
gation shall be void; otherwise to be and Ann. St. &$ 885, 886, to give a bond, and made
to remain in full force and effect. J. T. Mcthereby absolutely liable for county funds in Lean. (Seal.] W. J. Miller. [Seal.] Thos. his keeping, deposited in a bank such funds,
W. Leonard. [Seal.]”. repayable on demand, without interest, and took certificates of deposit therefor in his indi
In pursuance of such agreement, on May vidual capacity, but required the bank to exe- 5, 1893, plaintiff in error deposited in bank cute to him as county treasurer an indemnity $2,000 in sums of $500 each, and took from bond for the safekeeping of the funds. Held that, in the absence of a showing that such
it four certificates of deposit, of which the treasurer had made default to the county, or following is a copy: “$300. No. 1,183. New that he or his sureties were insolvent, he, and Castle, Colo., 5, 5, 1893. This certifies that not the county, was the “real party in interest" in a suit on the bond, within the meaning of
Geo. H. Moulton has deposited in the Bank Civ. Code, § 3, providing that, with certain
of New Castle five hundred dollars, payable exceptions, every action shall be commenced in to the order of himself, in current funds, on the name of the “real party in interest.”
return of this certificate properly indorsed. Error to district court, Garfield county. R. H. Zimmerman, Cashier.” And on May
Action by G. H. Moulton against J. T. Mc- 29th the further sum of $1,009, and took a Lean and others to recover public funds de
certificate for the same of like tenor and posited by plaintiff as county treasurer in de- form. Such sum of $3,000 remained in the fendants' bank, From a judgment for de- bank, and on July 12, 1893, the bankers fendants on the pleadings, plaintiff brings
failed, and made a general assignment. In error. Reversed.
September, 1893, this suit was brought upon In May, 1893, and subsequent to that the bond to recover the money deposited. time, Moulton (plaintiff in error) was treas- Suit was brought by plaintiff in error, as urer of the county of Garfield. J. T. Mc- obligee and payee of the bond as an indiLean and W. J. Miller, copartners, were do- vidual, and not in his official capacity as ing business as bankers at the town of New treasurer for the benefit of the county. A Castle, under the name of the Bank of New demurrer as follows was filed to the comCastle. The banking firm solicited plaintiff plaint: “(1) That said complaint does not in error to deposit in such bank a portion state facts sufficient to constitute a cause of the moneys in his hands and to come into of action against these defendants; (2) that his hands as treasurer with such bank. | plaintiff has no legal capacity to sue, beSuch arrangement was made, and the fol- cause the instrument upon which recovery lowing writing obligatory was executed and
is sought to be had herein shows upon its delivered to plaintiff in error:
face that it was given to G. H. Moulton, "Know all men by these presents that we,
treasurer of the county of Garfield, in the J. T. McLean and W. J. Miller, as princi
state of Colorado, and this action is compals, and Thos. W. Leonard, as sureties, all
menced and being prosecuted by G. H. Moulof the state of Colorado, are held and firm- ton in his individual capacity, and not as ly bound unto G. H. Moulton, treasurer of
treasurer of said Garfield county; (3) that the county of Garfield, and state of Colorado, there is a defect of parties plaintiff in said in the penal sum of ten thousand dollars, action, because recovery herein is sought lawful money of the United States, for the to be had by G. H. Moulton as an individpayment of which, well and truly to be ual, whereas the complaint shows upon its made, we bind ourselves, our heirs, execu- face that the instrument upon which this tors, and adininistrators, jointly, severally,
suit is based is an instrument running to G. firmly, by these presents. Sealed with our H. Moulton, treasurer of the county of Garseals, and dated this 4th day of May, A. D.
field, in the state of Colorado, and not to 1893.
him as an individual." Upon the hearing "The conditions of this obligation is such
the demurrer was sustained. Plaintiff took that whereas, the said G. H. Moulton, treas
leave to amend the complaint, and added urer of the county of Garfield, as aforesaid,
the allegation: "That at all times since the has, on the day of the date hereof, as such giving of said bond he has been, and still is, treasurer, deposited in the Bank of New the obligee named therein, and that at the Castle, at New Castle, Colorado, the sum of time of the bringing of this action, and for $2,000 (two thousand dollars) of the funds a long time prior thereto, and ever since, he of said Garfield county, of which said bank
has been, and still is, the owner of the said McLean and Miller are the owners.
cause of action set out in the complaint.” Now, therefore, the conditions of this obli- The same demurrer was refiled to the gation is such that, if the said J. T. McLean amended complaint, sustained by the court and W. J. Miller, doing business as the upon all of the three grounds designated, Bank of New Castle as aforesaid, shall at
judgment entered for the defendant upon all times well and safely keep and preserve
the pleadings, the action dismissed, and an said sum of money, and each and every part | appeal prosecuted to this court. thereof, or such other sums as may be here- C. W. Darrow and J. L. Hodges, for plainefter deposited in said bank by said county tilf in error. A. M. Stevenson, for defendtreasurer, and shall pay same over to him, ants in error.
REED, J. (after stating the facts). The on- vate speculation with public funds by the ly question presented for determination is official custodians thereof is emphatically the correctness of the judgment of the court contra bonos mores." In State v. Walsen, upon the demurrer. Counsel for defendant 17 Colo. 170, 28 Pac. 1119 (the latest adjucontended-First, that by the form and word- dication), it was said: "Absolute liability ing of the bond upon which suit was brought, of the treasurer and his sureties for all pubit was the bond of the county and that no lic moneys received by him as treasurer is action could be maintained by the plaintiff; fixed by the state constitution. In this resecond, that the transaction was a loan by spect the obligation of the treasurer is difthe treasurer, of the county funds, to the ferent from that of an ordinary trustee. bank, and was illegal and void under the * No amount of care will excuse him provisions of sections 1248–1251, Mills' Ann. in case of loss by theft, fire, or by insolvency St. (Sess. Laws. 1889, pp. 297, 298). Evi- of the banks selected as depositories. He dently one or both of these views must have must make the loss good to the state. He been adopted by the court as the basis of can only be discharged by paying over the the judgment. The county treasurer is by money when required, and the sureties upon law made the custodian of the funds; is re- his official bond also assume this unusual quired to make a bond with three or more liability.”. By this cursory view of the law securities (Mills' Ann. St. $ 885; Gen. St. and the liability of the treasurer and his $ 630), conditioned "that he and his deputies sureties, it at once becomes apparent that shall pay according to law all moneys which any interference with the contracts of the shall come to his hands as treasurer, and treasurer, and any restrictions upon him as shall render a just and true account * * custodian, inconsistent with his liability asand shall deliver the same to his successor sumed, would he illegal and unjust. The (Mills' Ann. St. 8 886; Gen. St. $ 631). For counsel contend that the contract was void all shortcomings or irregularities he and as to the treasurer under the provisions of his bondsmen are primarily responsible. sections 1248–1251, Mills' Ann. St. (Sess. Only in case of default or insolvency can he Laws 1889, p. 297). Section 1248 certainly be divested of the control of the funds, can have no application. It is not contendand the money followed by the county into ed that there was any embezzlement, converthe hands of third parties. In Re House sion to his own use, or any investment, nor Resolution, 12 Colo. 397, 21 Pac. 486, the that any funds under his control had been question of the extent of and the limitations made way with or secreted. The only statupon legislation under the constitution was ute that could have been violated was that brought to the attention of the supreme provision contained in section 1249; “No court, and it was said: "It is hardly pos- such officer, agent or servant shall loan out, sible that the framers of the constitution with or without interest, any money or valintended to make the treasurer and his sure- uable security received by him, or which ties absolutely responsible for the security may be in his possession or keeping or care of the public money, and yet authorize the or control, by virtue of his office, agency legislature to lodge with some other official or service, or under color or pretence therethe control thereof. * The responsi- of," etc. Section 1230 is as follows: “If bility and control for safe-keeping natural- any officer, agent, or servant shall make any ly belong together.” It is also said: “It is contract or agreement with any person or eminently proper, and, in view of section 13, persons, bodies or body corporate, or other art. 10, of the constitution, it may be a legis- association, by which such officer, agent, lative duty, to provide by statute that all or servant is to derive any benefit or adinterest paid by banks upon public funds vantage, directly or indirectly, from the dedeposited with them shall be placed to the posit with such person or persons, body or credit of the state.
* Reasonable leg- bodies corporate, or other association, of islative regulations, in addition to those any moneys or valuable securities held by named by the constitution, looking to the such officers, agents or servants, by virtue safe-keeping and management of public of his office, agency or employment, such funds, may be a wise precaution; and, if contract shall, as to such officer, agent or they regulate the control thereof without servant, be utterly null and void; but the 'vithdrawing it from the treasurer, we per- person or persons, body or bodies corporate, Jeive no constitutional objection thereto." or other association, shall be liable to the In addition to the above, the view here taken county, city, town, township or school district is sustained in Re Breene, 14 Colo. 401, 24 where funds are deposited, in an action for Pac. 3, where the court says: “The statute the recovery of all such benefits or advanin question, together with section 13, art. tages as would, by the terms of such con10, of the constitution, above mentioned, was tracts or agreements, have accrued to such doubtless inspired by more considerations officer, agent or servant; and payment to of public policy than the suspicion of dam- the officer, agent or servant shall not proage to the public revenue. The treasurer's tect the person or persons, body or bodies bond protects the state from pecuniary loss, corporate, or other association, against an and the criminal law provides a punishment action of recovery brought by the county, for the embezzlement of public moneys. Pri- | city, town, township or school district whose
funds are so deposited." Section 1251 fixes to the county arise, unless by the default of the penalty for violation, Sections 1249 and the treasurer and sureties. The right to fol1250 must be construed together to arrive at low public money into the hands of deposthe intention of the legislature. An examin- itories by reason of its being public money ation clearly shows such intention to have only arises upon the default and insolvency of been to prevent the misapplication and use those making the official bond. When that of public funds for the benefit and profit of occurs, the funds can, so far as the
an be the officer, to strictly prohibit the use of the traced, be recovered; and all individual semoney by the officer for speculative pur- curities taken by the officer are either transposes and for his own gain. The sections ferred and assigned by the officer or the opin question are based upon and enacted for eration of law, and inure to the benefit of the the purpose of carrying out the prohibition county. The cases cited by counsel for decontained in section 13, art. 10, of the state fendant and relied upon in argument will constitution, and by reference to that the be found to be those where there was deintention becomes manifest and the limits falcation of the officer; suits brought after of legislation defined. It is: “The making the expiration of the term of office, to follow of profit directly or indirectly out of state, up and recover the money. Such were the county, city, town or school district money cases of Comstock v. Gage, 91 Ill. 328, and or using the same for any purpose not au- Chicago v. Gage, 95 Ill. 593. Counsel seem thorized by law, by any public officer, shall to confound bonds of the character in ques. be deemed a felony and shall be punished as tion with official or statutory bonds,-those provided by law." The bond upon which required by law. It is true, the bond in ques. suit was brought runs to G. H. Moulton, tion runs to plaintiff in error as treasurer of treasurer of the county of Garfield. The Garfield county. Many reasons might be condition is: “Whereas the said G. H. Moul- given why, through prudence or precaution, ton, treasurer of the county of Garfield a bond, though really that of an individual.
has on the day of the date hereof should designate him in his official capacity. as such treasurer deposited,” etc. The cer- In case of his death, or any trouble arising tificates of deposit were made to George H. out of his administration or an examination Moulton in his private, not official, character. of accounts, it would identify such deposits
Having in view the statutes and decisions as those of the county intrusted to his care already cited, and the absolute and unquali- by virtue of his office, and separate them fied liability of the treasurer and his sure- from his personal estate; and, although the ties to pay over and account for all the mon- bond runs to him in his official capacity, its ey that came into his hands by virtue of his character is not changed, for the reasons office, the first question is, what, if any, legal stated above. Not being statutory, nor in effect or significance the fact of his having any manner contemplated by law, it is purethe bond run to him in his official capacity ly his own property,-an indemnifying bond, had upon the transaction. The first legal taken for his own safety, and not for the conclusion from the law and the premises is benefit of the county. The case of Probate that, so long as the treasurer and his sureties Court v. Strong, 27 Vt. 203, relied upon by remained solvent, and able and willing to counsel, has no application. It was the case comply with the obligations of the official of a statutory bond. The statute required bond of the treasurer, the bond, its exist- from the guardian a bond running to the proence, and its form were not matters of any bate court. The bond in question was giylegal importance or significance to the county. en to Joel Allen, judge of probate, etc., “to Regardless of its form and apparent official the said judge or his successor in said office." character, it was purely and simply a person- It was claimed that the declaration was inal security, wisely taken, for the protection sufficient, for the reason that the bond was of his sureties and himself. He was not the not a bond to the probate court. The court agent of the county by virtue of any statute said: “We think the intention cannot be misor delegated power to make the transaction, taken, and that it was designed to be an no legal warrant or authority existed, he was official bond, and not a bond to Judge Allen to safely keep, disburse, and pay over to his as an individual. The subject-matter of the successor. Court and counsel seem to have bond relates to the court of probate, and to fallen into the error of regarding the treas- what is purely an official character. urer as the agent of the county, and that any This shows clearly the intention to make it security by him taken was taken in a fidu- an official bond," etc. The distinction beciary capacity, and was the property of the tween the two cases is obvious. In this case county by operation of law, simply from the the intention to make it personal, and a bond fact that it was county money. The trans- of indemnity, is fully expressed, and the inaction not being one required or authorized tention clear. by law, the treasurer could not hand over The contention of counsel and judgment of the security and be discharged to that extent the court that the suit. was wrongly brought from the liability of himself and sureties; by plaintiff cannot be sustained. By the that remained the same; consequently, there Civil Code (section 3) it is provided: "Every was no agency, and no title to the bond in action shall be prosecuted in the name of the question could pass, nor any cause of action real party in interest except as otherwise
provided in this act." No provision in the loan, it does not follow that that is the sense act exempts this case from its provisions. and meaning of the word as used in the This section has been frequently sustained statute. Such a deposit of money is not, in by the courts. See Bassett v. Inman, 7 Colo. the ordinary and popular sense, a loan oť 270, 3 Pac. 383, where it is said that the as- money, and we are satisfied that the words signee of the note and account "was the real ‘loaning' and 'loan,' employed in the statparty in interest, within the meaning of the ute, were used in their popular sense, and Code of Civil Procedure, even though the not in the strict legal meaning to include a consideration of the assignment may have bank deposit." This authoritative construcbeen a payment to the assignor after recov- tion of the statute, of which ours is a literal ery in the suit by the assignee." See, also, copy, shows that section 1249 has no appliWalker v. Steel, 9 Colo. 388, 12 Pac. 423; cation to this case. There being no violaLimberg v. Higenbotham, 11 Colo. 156, 17 tion of that section, the provisions of secPac. 481; Jackson v. Hamm, 14 Colo. 61, 23 tion 1250 can have no application, and the Pac. 88; Bank v. Hummel, 14 Colo. 275, 23 treasurer would not be divested of, or the Pac. 986,-where it is said “ 'the real party in county invested with, the title to the bond interest' is held to mean the person in whom by operation of law, and, not being possessed the legal title to the claim in suit is vested." of it as the “real party in interest," no There having been no question of the solven- action could be maintained by the county, .cy of the treasurer and his sureties, no de- or “to its use." The bond, as one of indemnifault, and the treasurer being liable over for ty, is in proper form. The bank made dethe funds deposited with defendants, and fault in the payment of the money.
The the bond having been taken by the treasurer bond was given to secure, and, by its terms, as one of indemnity, the fact that the money became operative. The deposit of the money was that of the county, and upon its recov- in the bank was a proper and legal considerery by the treasurer must have been paid ation. Comstock v. Gage. We think the alover to the county, did not change the status legations in the complaint show a cause of of the parties, invest the county with the action, that it was properly brought in the title to the bond, nor divest the treasurer. name of plaintiff, and that the court erred in See Bassett v. Inman, supra; Cummings sustaining the demurrer. The judgment will v. Morris, 23 N. Y. 625; Meeker v. Claghorn, be reversed, and the cause remanded. Re44 N. Y. 349; Caulfield v. Sanders, 17 Cal. versed. 569. The court erred in holding the county to be the “real party in interest," and that the suit should have been brought in its
(15 Mont. 314) name or to its use.
BEATTY V. MURRAY PLACER MIN. CO. Counsel contend, and the court seems to (Supreme Court of Montana. Feb. 11, 1895.) have adopted the view, that the transaction APPEAL-ABSENCE OF BILL OF EXCEPTIONS. was a loan or loans, consequently illegal, un
Where the record contains neither a bill der section 1249, Mills' Ann. St., and that by
of exceptions nor a motion for a new trial, the
question of the sufficiency of the evidence will reason of such illegality the security taken
not be considered. by the treasurer passed to the county, under
Appeal from district court, Jefferson counsection 1250, Id. Such construction cannot
ty; Thomas J. Galbraith, Judge. prevail. The transactions were deposits,
Action by George Beatty against the Murpayable upon demand, without interest.
ray Placer Mining Company and others. That the moneys were not payable upon checks, but only upon return of the certifi
There was a judgment settling the rights of
the parties, and from that part of the judg. cates in no way alters the legal status.
ment in favor of defendants Davis, ThompTechnically, all deposits made to banks are
son, and Julia Reynolds, as against the Murloans. The identical money is not to be re
ray Placer Mining Company, the company apturned, and the bank becomes the debtor to
peals. Affirmed. the amount of the deposit, but it is clear, as before stated, that it was not the intention Toole & Wallace and Massena Bullard, for of the legislature to prohibit the depositing appellant. Wade & Barrows, for respondent. of money in banks for convenience in safekeeping. It is the using of public money by HUNT, J. The plaintiff sued the defendant the officer for his own gain that is intended the Murray Placer Mining Company and 16 to be reached. It is the use of money by way others to determine the right to the use of cerof loans. In Maillard v. Lawrence, 16 How. tain waters of Beaver creek, Jefferson coun251, it was said: "The popular or received ty and to have established by decree the relaimport of words furnishes the general rule tive rights of all parties to the suit, to the use for the interpretation of public laws as well of said waters. Separate answers, claiming as of private and social transactions." In appropriations and use, were made by the deconstruing the identical statute before us, fendants Davis, Thompson, and Julia Reythe supreme court of the state of Illinois, in nolds. The defendants Samuel T. Hauser, Comstock v. Gage, supra, said: "Admitting Anton M. Holter, John Murray, and H. D. that a general deposit of money with a bank Hauser jointly answered, denying plaintiff's is, in a strict technical and legal sense, a appropriations at the dates alleged in his