8. TRIAL INSTRUCTIONS TO BE CONSIDERED AS AN ENTIRETY.

In determining the propriety of an instruction, it should be taken as an entirety, and not divided into incomplete phrases.

9. BROKERS-COMMISSIONS-ACTION-INSTRUC

TIONS.

In an action for commissions under a contract by which plaintiff was employed to assist defendant in acquiring the title to property for the purpose of effecting a consolidation of it with other property, a charge that plaintiff could not recover if he and defendant were unable to effect a sale with the owners, and other persons not co-operating with defendant subsequently did so, and effected a consolidation, even though defendant contributed to the purchase, was not inconsistent with the terms of the contract, since the thing contracted to be done was the securing of the title to the property and the making of the consolidation by plaintiff, and not by another person not connected with defendant. 10. SAME-RIGHT TO COMMISSIONS.

If plaintiff contracted to assist defendant in purchasing mining claims and consolidating them with other property, and the attempt was unsuccessful and the project abandoned, defendant would not be thereby precluded from afterwards negotiating with others to carry out the same enterprise, and, if the matter were accomplished in connection with other persons wholly independent of plaintiff's efforts, he could not recover for his unsuccessful services.

Appeal from District Court, Teller County; Robert E. Lewis, Judge.

Action by Morton S. Bailey against Albert E. Carlton for commissions. Judgment for defendant, and plaintiff appeals. Affirmed.

Richardson & Hawkins, for appellant. Ira Harris, for appellee.

BAILEY, J. The complaint in this action alleges that on or about the 1st day of June, A. D. 1900, the defendant "employed the plaintiff to assist him in procuring the title to two certain lode mining claims situate in Cripple Creek mining district, Teller county, state of Colorado, known as the Doctor and Chief lode mining claims, for the purpose of effecting a consolidation of said claims with certain other lode mining claims situate contiguous thereto, and the defendant then and there contracted with and agreed to pay to the plaintiff for such services the sum of 5 per centum upon any amount which it might be found necessary to pay to the owners of the said Doctor and Chief lode mining claims, for the purpose of securing the same so as to effect said consolidation"; that the plaintiff accepted the employment, entered actively upon the work of aiding and assisting the defendant in securing the claims, and continued to do so until the consolidation was effected; "that on or about the 1st day of December, A. D. 1900, the defendant, while the plaintiff was so engaged in aiding and assisting him as aforesaid, did secure the title to said lode mining claims, and did effect the consolidation of said properties, including the said Doctor and Chief lode mining claims, in which said consolidation there was paid to the owners of the said Doctor and Chief lode mining claims the sum of $450,000";

that by reason of the said consolidation, and the aid and assistance rendered therein by plaintiff, there became due and owing from the defendant to the plaintiff the sum of $22,500, which has not been paid. The defendant answered this complaint, first, by a general denial, then by a special defense, in which he alleged that he authorized the plaintiff to get an option for the sale of the property and agreed to pay him a commission of 5 per cent., provided the plaintiff could get the properties or an option for their purchase at a price satisfactory to the defendant; that defendant gave the plaintiff ample time to procure the option, but that plaintiff failed to do so; that during the fall of 1900 H. H. Lee of Denver secured an option for the sale of the property in the name of J. A. Hayes, trustee, and under such option the owners transferred to the DoctorJackpot Consolidated Mining Company the properties mentioned in the complaint, and that the properties were purchased by this mining company wholly through the efforts of Lee, and that the plaintiff rendered no assistance whatever in such purchase. Plaintiff denied the allegations of this answer. There was a verdict and judgment for the defendant, and plaintiff appeals.

The first alleged error discussed in the briefs relates to the testimony of A. M. Stevenson, a witness for the plaintiff. It appears that Mr. Stevenson and Josiah Winchester had a lease upon the properties described in the complaint, and that the sale could not be consummated without a surrender of this lease; that Stevenson and Winchester had agreed with the plaintiff to surrender the lease in the event of his securing a satisfactory option. Such an option was not secured. Upon the cross-examination of Mr. Stevenson, the following question was asked: "Do you recollect, Mr. Stevenson, that you had practically abandoned the hope of carrying this matter out in September, and at that time did not Mr. Carlton agree or offer to surrender this to you?" It evidently had reference to the agreement to surrender the lease. Plaintiff objected to this question as being immaterial. This objection was overruled. The witness answered: "I don't recollect that. I know that we had abandoned the idea of carrying out that contract, and never did carry it out." The plaintiff could not have been prejudiced by this question or answer, even though it was improper (which we do not determine), for the reason that with the exception of the statement that the contract was never carried out, and consequently was abandoned, the balance of the question was answered in the negative. The plaintiff surely was not injured by Mr. Stevenson's saying he did not recollect that they had practically abandoned the hope of carrying the matter out in September.

The defendant testified, without objection, that at the plaintiff's suggestion he called upon Mr. Robison, who was one of the own

ers of the property, and had a conversation with him relative to its purchase. In the course of his testimony he stated that Mr. Robison declared with much emphasis that his (the defendant's) time had been wasted, and that he (Robison) never would sell the property for the price named by defendant. This last statement was objected to, the objection overruled, and plaintiff assigns error for that. If the conversation with Mr. Robison was admissible at all, and we cannot conceive of any reason why it was not, and the plaintiff does not assert that it was not, then it was perfectly proper to give the entire conversation.

In the course of the trial testimony was admitted which tended to show that Mr. Lee secured an option upon the property; that he, with the co-operation of Edward J. Seeley, sold this property to Clarence Edsall, who had it transferred to J. A. Hayes, trustee, pending the formation of the corporation called the "Doctor-Jackpot Consolidated Mining Company," to which it was afterwards transferred. About the time that this arrangement was completed the defendant was approached by some of the promoters and requested to take part in the enterprise, which he did, investing the sum of $25,000 in this new company. Upon cross-examination of the defendant in relation to this consolidation thus effected, he was asked the following question: "It was never understood that the legal title to these properties was necessary to be taken in your name by yourself or Judge Bailey, was it?" This question was objected to and the objection sustained. It is contended that the court erred in this. If there was error committed by the court in this respect, it was without prejudice to the plaintiff, for the reason that the uncontradicted testimony shows conclusively that the defendant was not a party to the procuring of the option nor to the organization of the enterprise, which finally brought about the consolidation of the properties, until the transaction was practically consummated. This being true, it is immaterial as to whether or not the contract made by the plaintiff and defendant contemplated that the legal title to the property should be taken in the name of the plaintiff or defendant, or in some person else. If the proof had tended to show that the defendant, for the purpose of avoiding his contract with the plaintiff, had procured some other person to secure the title to the property, a different rule would obtain, but here there is a total absence of any proof which imputes an unfair or dishonest motive on the part of the defendant, and there is nothing to show that the title to the property was obtained either by him or through his instrumentality or that of the plaintiff. Consequently, even though the question may have been proper under the pleadings, an examination of the transaction as shown by the testimony demonstrates that the sustaining of the objec

tion was without prejudice to the rights of the plaintiff.

Mr. Edsall, a witness called for defendant, was permitted, over the objection of plaintiff, to testify that he purchased the claims in question from Mr. Seeley and to give the circumstances and details under which he purchased them, and also to testify that the defendant took no part in the transaction. This is assigned as error. We fail to see the force of the contention, in view of the fact that the answer of the defendant alleges the very thing which was proven by Edsall's testimony. Plaintiff testified that he would not be entitled to his commission if Lee was conducting his negotiations with parties other than the defendant; and Edsall's testimony was admissible for the purpose of showing that that very fact existed. This disposes of all the objections and exceptions which were made and reserved during the taking of the testimony.

Instruction No. 2, requested by the plaintiff, was to the effect that, if they believed the contract set out in the complaint had been established and that the plaintiff performed the obligations imposed upon him by the contract, that notwithstanding the fact that others may have been engaged in endeavoring to accomplish the same purpose, yet, if the defendant had not revoked the plaintiff's authority and the purpose of the contract was consummated, the plaintiff was entitled to recover. The court refused to give this instruction, but did give instruction No. 5, requested by the plaintiff, which embodies the same principle of law. Consequently there was no error in the refusal to give instruction No. 2. Baldwin v. Central Savings Bank, 17 Colo. App. 7, 67 Pac. 179.

Plaintiff complains bitterly because of the instructions given by the court to the jury, asserting that the court tried the case upon a wrong theory. As we read the instructions, they are in absolute harmony with the case made by the pleadings and the testimony. Instruction No. 1 is as follows: "Now, the jury are instructed that if you find and believe by the preponderance or greater weight of the evidence that the defendant, in the summer of 1900 did employ the plaintiff to assist him in procuring the title to said Doctor and Chief lode claims for the purpose of putting said claims with others, into a consolidation, and agreed to pay plaintiff 5 per centum on the amount at which said claims might be purchased, that plaintiff agreed thereto, and immediately thereupon and thereafter did assist the defendant in procuring the title to said claims, and that defendant about December 1, 1900, while plaintiff was so assisting him, did secure from Cone and Robison, the owners of said lode claims, the title thereto, at a consideration of $450,000 paid, and did put said claims into a consolidation with other contiguous claims, then the jury will find for the plaintiff and assess his damages at $22,500,

thereon from the time plaintiff made demand upon defendant for the payment of said sum to this date; otherwise you will return a verdict for the defendant." The plaintiff says that this instruction is erroneous because it limits his right to recover by the interposition of several contingencies not mentioned in the contract, the first of whichthat the defendant should secure the title from the owners-is wholly foreign to the contract. Plaintiff's case as made by the complaint rests upon the allegation that the defendant while the plaintiff "was so aiding and assisting him as aforesaid did secure the title to said lode mining claims, and did effect a consolidation of said property." Having alleged that the plaintiff agreed to assist the defendant in securing the title, and that defendant by reason of such assistance did secure the title, plaintiff cannot complain of an instruction which bases his right to recover upon proof of the allegation. Again, that portion of the instruction found in the following words: "Did put such claims into a consolidation"-is asserted to be a modification of the contract, yet the words used by the court are the very words that are used by the plaintiff in stating his cause of action. And so with the next objection which is urged to this instruction—that is, that the defendant should have secured the title while plaintiff was assisting him. Yet the language of the complaint is that the defendant, "while the plaintiff was so aiding and assisting him as aforesaid, did secure the title to said lode mining claims."

The third instruction given by the court to the jury is as follows: "Although the jury may find and believe from the evidence that the defendant did employ the plaintiff to assist him in securing the title to said lode claims, and did agree to pay the plaintiff 5 per cent. on the purchase price at which said lode claims should be taken into a consolidated company, and that plaintiff did render services in an attempt to procure said lode claims to be put into said consolidated company, yet if you further find and believe from the evidence that plaintiff and defendant were unable to agree with Robison and Cone in the purchase of said claims, and that other persons, not co-operating with defendant, thereafter initiated negotiations with said Robison and Cone for the purchase of said lode claims and put them into a consolidated company, you will return a verdict for the defendant, even though you may further find and believe from the evidence that the defendant on request, contributed to the purchase of said lode claims." The plaintiff quarrels with this because of the phrase, if the jury "believe from the evidence that plaintiff and defendant were unable to agree with Robison and Cone in the purchase of said claims." Plaintiff contends that this, in effect, tells the jury that if the plaintiff had made out a complete case, if he had complied fully with 95 P.-35

not recover if "the plaintiff and defendant were unable to agree with Robison and Cone in the purchase of said claims." The instruction must be taken as an entirety. It cannot be divided into phrases which are incomplete, and thus destroy its sense. The balance of. the clause is: "and that other persons, not co-operating with defendant, therafter initiated negotiations with said Robison and Cone for the purchase of said lode claims and put them into a consolidated company," plaintiff could not recover, even though the defendant contributed to the purchase of the property. Plaintiff also contends that the phrase "other persons not co-operating with defendant" is not warranted by the contract, because, as he says, "the only contingency provided for by the contract is that the consolidation shall be effected." This is not true, because the contract, as alleged by the plaintiff, is that the plaintiff was employed to assist the defendant in securing the title to the property for the purpose of effecting a consolidation of said claims with certain other property, and that the plaintiff did secure the title to the property, and did effect the consolidation. The thing contracted to be done was securing the title to the property, and the making of the consolidation by the plaintiff, and not by some person not connected or associated with him. Plaintiff in his testimony stated: "I wouldn't obtain any commission, I wouldn't be entitled to any commission, if Mr. Carlton was not the party for whom Mr. Lee was acting. If Mr. Lee was acting for some other parties and was effecting a consolidation through others, then I wouldn't have any commission." This instruction relates to that very phase of the contract which was pleaded and proven by the plaintiff. Defendant testified that about the 1st of September he and the plaintiff concluded that they would be unable to purchase this property from Robison and Cone, and make the consolidation because of the price at which it was held by the owners, and that the project was abandoned. Plaintiff said that, while there were no further negotiations or communications after about August 27th upon his part, there was no thought of an abandonment.

The fourth instruction given by the court is to the effect that if there was an abandonment of the contract, and that thereafter the defendant, acting with others, succeeded in obtaining the property and making the consolidation, and this, independent of any of the efforts of plaintiff, the plaintiff could not recover. The defendant was entitled to this instruction upon his theory of the case. If, as he contends, he and the plaintiff found that they were unable to make the purchase of the property and abandoned the project, this would not prohibit the defendant from afterwards negotiating with others to carry out the same enterprise, and, if the matter was accomplished

in connection with others, wholly and absolutely independent of any efforts made by the plaintiff, plaintiff could not recover for his services which had proven to be futile. The ninth instruction is as follows: "The court instructs you that, although you may find from the evidence that the defendant employed the plaintiff to assist him in procuring title to the Doctor and Chief mining properties for the purposes of consolidation, still if you further find from the eviIdence that the titles to such properties were acquired by some one other than the defendant herein, and that the defendant did not actively participate, or take part in acquiring the title to such properties, then your verdict must be for the defendant." This instruction is based upon the allegations of defendant's answer and the testimony introduced on behalf of the defendant, and, if the jury found the facts as therein stated, the plaintiff would then have no cause of action against the defendant.

We are satisfied that, under the pleadings and the proof, the plaintiff had no right of recovery against the defendant. We are

unable to find wherein the court erred in the trial of the cause, and the judgment will therefore be affirmed.

Affirmed.

STEELE, C. J., and GODDARD, J., con

cur.

(43 Colo. 188)

EMPSON PACKING CO. v. CLAWSON. (Supreme Court of Colorado. April 6, 1908.) 1. CONTRACTS-PERFORMANCE-DETERMINATION OF THIRD PERSON-CONCLUSIVENESS.

Where parties to a contract designate one who is authorized to determine questions relating to the execution of the contract, and stipulate that his determination shall be final and conclusive, both parties are conclusively bound by his determination of such matters, except in case of fraud or gross mistake implying bad faith or failure to exercise an honest judgment. [Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 1326.]

2. SAME.

A contract required one to plant and cultivate a certain acreage of peas, and collect and deliver the same to a packing company, which agreed to receive and pay a specified price for peas delivered by him in proper condition for canning. The contract stipulated that the superintendent of the packing company should be the sole judge of the proper condition of the crop for canning. Held, that the judgment of the superintendent was conclusive in the absence of fraud or gross mistake.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1326-1329.] 3. SAME.

A party to a contract stipulating that the determination of a third person as to performance of the contract shall be conclusive, who desires to avoid the determination of the third person must allege facts presenting fraud or implying bad faith or a failure to exercise an honest judgment by such third person.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1326-1329, 1343.]

4. SAME-CONSTRUCTION.

A contract required plaintiff to plant and cultivate a certain acreage of peas, and collect and deliver the same to a packing company. The contract stipulated that the peas should be suitable for canning purposes, and that the superintendent of the canning company should be the sole judge of the proper condition of the crop. It provided that plaintiff should submit samples of crops to the canning company a few days before the peas were ready to harvest, and that the company would advise what day the delivery should be made. Held, that the company, on being notified by plaintiff that the crop was about ready to be harvested, must exercise due diligence in examining the crop to determine its condition with respect to fitness for canning, and plaintiff was entitled to recover where the company failed to exercise due care, and prevented a delivery at a time when the crop was in proper condition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1430-1437.]

5. SAME.

Where the performance of an obligation is prevented by one of the parties to a contract, the party prevented from discharging his part of the obligation will be treated as though he had performed it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1430-1437.]

6. APPEAL ERRONEOUS RULINGS-GROUNDS FOR REVERSAL.

Where a cause was submitted to the jury on two theories, one erroneous and one correct, and the court on appeal cannot determine which theory the jury followed, the judgment must be reversed.

Appeal from District Court, Boulder County; Jas. E. Garrigues, Judge.

Action by Garrett Clawson against the Empson Packing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fillius & Davis and Ernest Morris, for appellant. H. M. Minor and Albert Dakan, for appellee.

GABBERT, J. The Empson Packing Company and Garrett Clawson entered into a contract, whereby Clawson contracted to plant and cultivate a certain acreage of peas, and to collect and deliver the same to the packing company. The company agreed to receive the peas that Clawson delivered in proper condition for canning, and to pay him a specified price per 100 pounds. The contract contained this stipulation: "It is stipulated and agreed that all peas grown on this contract shall be delivered at the factory of the Empson Packing Company at Longmont, Colorado, in suitable condition for canning purposes. The largest peas must be tender and in best condition for eating. All pods must be green when vines are cut. If they are white they will be too old and will not be accepted. The foreman, superintendent, or some officer of the Empson Packing Company is to be the sole judge of the proper condition of the crops for canning. Party of the first part (Clawson) is to submit sample of crops to party of the second part a few days before peas are ready to harvest, and they will be advised what day to deliver them." The company refused to ac

cept part of the crop, and Clawson brought suit to recover damages for the alleged failure of the company to comply with this contract. In his complaint, after setting out the contract hæc verba, plaintiff alleged, in substance, that he had complied with its terms upon his part, but that the company refused to receive or pay for about two-thirds of his crop, which refusal was without legal reason or excuse therefor, whereby the plaintiff lost this part of his crop, to his damage in the sum of $500. To this complaint the defendant company answered, in which it denied that plaintiff cultivated and raised a crop of peas of the quality required of him by the terms and conditions of his contract; denied that it refused to receive or pay for any peas raised by him under his contract that were of the quality and kind specified; and alleged that the peas tendered by plaintiff were not of the quality as specified in the contract, that they were not in suitable condition for canning, that the peas were scalded and wrinkled, that they were carefully inspected, as provided in the contract, by the president of the company, its field foreman, and superintendent for the purpose of ascertaining whether they were in proper condition for canning, and that each and all of these persons determined that they were not. To this answer the plaintiff filed a replication, wherein he averred that he notified the defendant that the peas were in proper condition for delivery, and that he was ready and willing to deliver them, and that at the time of such notice they were in the condition required by the contract, and that, if they were not in the condition that the contract required when delivered or tendered, it was because of the refusal of the defendant to receive them sooner. He further alleged that the field superintendent of the defendant had been to the field where the peas were growing, and well knew that they were ready and in proper condition to deliver, but, disregarding his duty, and arbitrarily acting in bad faith, declined and refused to state that the peas were ready to deliver, and therefore denied that the officials mentioned in the defendant's answer examined and determined when the peas were in proper condition for delivery, but willfully, negligently, and in bad faith declined and refused to do so, and to notify plaintiff when to deliver them, contráry to, and in disregard of, the obligations imposed upon it by the contract. The issues thus made were submitted to a jury. Verdict was rendered for plaintiff. From a judgment thereon, the defendant appeals.

Over the objection of the defendant, testimony was admitted on behalf of the plaintiff tending to prove that the peas were in a proper condition for canning at the time he offered to deliver them to the defendant at its factory. The testimony on behalf of the defendant was to the effect that the peas were unfit for canning purposes because they were scalded. The court instructed the jury to the effect

that they should determine from the testimony whether or not the peas tendered by plaintiff were scalded, and that they might determine, from the testimony bearing on the condition of the peas at the time of their rejection for the purpose of determining whether the defendant exercised the right reserved in the contract to determine the proper condition of the peas for canning, in a fair and impartial manner, or arbitrarily and prejudicially to the plaintiff, and that defendant was bound to exercise the right of determining the condition of the peas in a manner satisfactory to the mind of a reasonable person. The admission of the testimony for the purpose indicated, as well as the instructions given, was error. The parties to the contract selected the persons who should be the sole judges of the proper condition of the peas for canning. Their decision that they were not was binding and conclusive upon them, and could not be assailed, except for fraud, or such gross mistake as would indicate bad faith, or that they had failed to exercise an honest judgment in discharging the duty imposed upon them. In other words, the rule of law is that where parties to a contract designate a party who is authorized to determine questions relating to its execution, and stipulate that his determination shall be final and conclusive, both parties are conclusively bound by his determination of those matters which he is authorized to determine, except in case of fraud, or such gross mistake upon his part as would necessarily imply bad faith, or a failure to exercise an honest judgment. Martinsburg & Potomac R. R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Sweeney v. United States, 109 U. S. 618, 3 Sup. Ct. 344, 27 L. Ed. 1053; McAvoy v. Long, 13 Ill. 147; Elliott v. M., K. & T. Ry. Co., 74 Fed. 707, 21 C. C. A. 3; Wallace v. Curtiss, 36 Ill. 156; Lucas Coal Co. v. Del. & H. Canal Co., 148 Pa. 227, 23 Atl. 990; Nofsinger v. Ring, 71 Mo. 149, 36 Am. Rep. 456; Chicago, Santa Fé R. R. Co. v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; Kihlberg v. United States, 97 U. S. 398, 24 L. Ed. 1106; Lynn v. B. & O. R. R. Co., 60 Md. 404, 45 Am. Rep. 741; McAuley v. Carter, 22 Ill. 53; Choctaw & M. R. Co. v. Newton, 140 Fed. 225, 71 C. C. A. 655. In the case at bar the parties selected certain officials of the defendant company, and stipulated that the fitness of the peas for canning should be determined solely by them. Necessarily this stipulation rendered their judgment conclusive in the absence of the conditions under which it could be assailed. By this stipulation the parties did not agree that the correctness of the judgment of the persons agreed upon to determine the fitness of the peas for canning should be submitted to a court, a jury, or the opinion of any one, other than those designated. Courts have no authority to abrogate or modify contracts which parties have deliberately entered into. On the contrary, it is their duty to enforce them as they find them, and not to inject