Officers' Authority. Cases cited to the proposition that the officers of a bank have no authority to stipulate that the re-discount of the paper of another bank shall be turned into an absolute transfer without recourse. First National Bank v. Cripple Creek Bank, 37.
Banking Act-Construction. The Banking Act (Laws 1907, c. 111, Laws 1911, c. 79) is to be liberally construed for the protection of the bank, its depositors and stock holders. National Surety Co. v. Wilson, 460.
Construed. A loan of any amount whatever to one who is already indebted to the bank in excess of the statutory limit is a violation of section 30 of the Act of 1907. Id.
Obstructing-Evidence. Action for defendant's failure to maintain a bridge in repair, alleging (1) That defendant constructed the bridge over its canal upon a public road, the only access to plaintiff's farm; and (2) That in consideration of the vacation of the road, the defendant constructed a road and bridge over its canal, and agreed to maintain it for the public use, and for that of plaintiff. Upon both propositions the facts below are found for defendant and the judgment was affirmed. Harding v. North Poudre Company, 86.
BODY JUDGMENT.
See EXECUTION.
CIVIL SERVICE.
See DENVER.
Carrier of Live Stock-Notice of Injury. A stipulation in the bill of lading of live stock, requiring, as a condition precedent to a recovery for damage thereto, written notice of the fact, and nature of the claim, to be given to the carrier, before the removal of the animal from the destination, is, when founded upon sufficient consideration, valid. A reduced rate of carriage is a sufficient consideration. Atchison Co. v. Miller, 46.
Waiver of Notice. Where the subject of the shipment is interstate commerce the carrier cannot waive the notice. Id.
Revenue Bills. An act for establishing a general system of free schools, providing for the levying and collection of taxes as incident to the main purpose, is not within the condemnation of sec. 31 of Art. V of the Constitution. Neither is a supplemental or amendatory act, looking to the same end. Chap. 206, Laws of 1911, is not a bill for raising revenue within the meaning of the Constitution. Chicago, Burlington & Q. R. Co. v. School District, 159.
Costs in Condemnation Proceedings. So far as sec. 2424 of the
Revised Statutes allows costs to be taxed against the owner it is
unconstitutional as opposed to sec. 15 of Article II of the funda-
mental law. Keller v. Miller, 304.
Schools-Exemption from Taxation. Sec. 5 of art. X of the
Constitution, exempting from taxation lands used for schools, is
to be liberally construed.
Premises occupied solely for a private school, although con-
ducted for profit, are exempt. Pitcher v. Miss Wolcott's School,
294.
Private Property. The statute directing the destruction of gam-
bling devices (Rev. Stat., sec. 1795) is not unconstitutional.
Stanky Thompson Co. v. People, 456.
Consideration. An alleged concession of what the one to whom
it is made is already entitled to, is not a consideration for any
new undertaking upon his part. Benford v. Yockey, 96.
Construction. Where the language of a contract is ambiguous
the conduct of the parties acting under it, before controversy
arises, is one of the most reliable tests of their intention. North
Boulder Co. v. Leggett Co., 522.
Construed. Defendant exchanged properties with plaintiff,
agreeing to place upon the market those received by him, and if
sold for exceeding a specified sum, credit plaintiff with the excess,
upon notes which plaintiff had executed to him. In disposing of
a certain farm, one parcel of the properties which he had received
in exchange, defendant accepted another property. Held that in
accounting with plaintiff, the last mentioned parcel must be rated
at the valuation at which he had accepted it, even though in fact
such valuation was greatly in excess of the true value. Benford v.
Yockey, 96.
Plaintiff received in the exchange of properties a certain room-
ing house, upon which she executed to defendant a mortgage for
the difference in value between what she had received, and what
she had parted with, in the exchange. She afterwards sold the
rooming house to one who assumed the mortgage. Held that
such disposition of the rooming house in no way exonerated de-
fendant of his obligation to account to plaintiff for the excess
which he had received for the farm; that in effect plaintiff re-
tained an interest in the farm to the extent of such excess; that
the provision for a credit upon plaintiff's notes was a specified
mode of payment, but not the exclusive mode; and that though
no longer liable upon her notes she was entitled to recover the
amount to which, if her liability had continued, she would have
been entitled to a mere credit. Id.
A promissory note was secured by deed of trust of lands, which
recited that the moneys mentioned were advanced to be applied
to the construction of certain improvements upon the described
premises. There was an agreement that the moneys should be
paid to the land owner by a day named. Held impossible to say
that the lender was to disburse the money. Having failed without
excuse to advance the full sum by the prescribed date, the bor-
rower was entitled to recover the amount withheld. Stewart v.
Newton Co., 137.
A corporation organized to construct an irrigating canal and
reservoirs, executed a contract by which it agreed to sell to a
party named, a water right, entitling him to 1.3 cu. ft. of water
per second of time, for the irrigation of particular lands de-
scribed. That corporation and one which succeeded it, failed,
and the property passed to defendant. The contract for the
water right, and the land and the water to be furnished under
the contract, became vested in plaintiff.
Defendant purchased other rights than those to which the
original corporation was entitled and constructed reservoirs not
contemplated in the original plan, expending in this manner a
very large sum of money. Held that the contract was a binding
servitude upon the canal, and the reservoirs constructed prior to
defendant's acquisition of the property, the canal and such res-
ervoirs to be taken and considered as a system for supplying
water under the contract, and that plaintiff was limited to this
source of supply.
The contract also provided that when a number of water rights
equal to the estimated capacity of the canal should have been sold,
it would issue to the holder of each right, shares of its stock
bearing to the total stock the same proportion as the water right
sold under the contract should bear to the number of water rights
equal to the capacity of the canal, and that the purchaser of
the water right named in the contract should accept the same;
and that in case the volume flowing in the canal should be in-
sufficient to supply all holders of water rights outstanding, the
company might distribute the water among the holders of rights
pro rata.
The agreed capacity of the canal was 216 water rights of 1.3
cubic feet per second of time. Prior to defendant's acquisition
of the property only thirty rights had been sold. The purchasers
of all these, except plaintiff, had accepted stock in the defendant,
each in an amount sufficient to irrigate eighty acres of land.
Plaintiff refusing to accept stock, held that in time of scarcity he
was required to pro rate with the other holders of all the 216
water rights. North Poudre Co. v. Liggett, 180.
Sale or Option. A contract of sale binds the seller to sell, and
the purchaser to buy. An option confers the right of purchase
without imposing any obligation whatever to complete the pur-
chase.
A contract held to be a mere option, and not an agreement to
purchase. Stelson v. Haigler, 200.
Defendant had employed plaintiff to sell certain real property.
Plaintiff produced a broker to whom defendant executed an option
to purchase the lands. Thirty thousand dollars was to be paid
plaintiff by a day specified, and out of this payment defendant
agreed to pay plaintiff $5,000. No payment was ever made by
the holder of the option, and no excuse for such non-payment, or
failure on the part of defendant to perform the agreement, on his
part, was shown. Held that plaintiff was not entitled to the
$5,000 or any part thereof. Id.
A corporation owning certain lands and proposing the construc-
tion of works for their irrigation, agrees with the owner of other
lands to furnish water for the irrigation thereof, he paying no
part of the cost of construction, but a proportion of the upkeep
of the works. Held not to confer upon such land owner an ease-
ment in the irrigation system. Hess Flume Co. v. La Junta Land
Co., 256.
Contemporaneus assignments by the insured, of moneys due un-
der a fire insurance policy. The first in favor of defendant in
error, for a payment of an amount due upon a mortgage of the
insured chattels. The second, by expressed terms subordinate to
the first. The transaction was in good faith. Judgment that the
amount due defendant in error, including the expense of collecting
the insurance, should be first paid, and any balance to plaintiff
in error, affirmed. German American Co. v. White, 317.
Contract of attorney and client. A firm of attorneys contracted
to prosecute an action for fifty per cent. of the amount of the
claim, "whether obtained by suit or compromise." The agree
ment authorized them to compromise, for an amount satisfactory
to the client, but imposed no limitation upon the client in that
respect. Held that the contract had not the effect to constitute
the attorneys equitable assignees of the judgment recovered by
their efforts, or of an interest therein, that the client was still
entitled to compromise his demands without the consent of the
attorneys, and without consulting them, even for a sum which,
to his knowledge, they had rejected, and that the attorneys were
entitled to no more than the moiety of what was obtained by the
client's settlement. Nichols v. Orr, 333.
Contracting builder agrees to obtain bids for the work and
material required for the erection of a building, and to pay the
cost of the building in excess of a specified sum. The cost ex-
ceeding this limit, the contractor is liable for the excess, less the
cost of extras, additional cost by changes from the plans specified
in the contract, and other additions to the cost to which the
owner consented, including additional cost occasioned by delays to
which the owner consented. Cook v. Grand Valley Bank, 394.
In 1874 the North Boulder Company granted to the White Rock
Company a right of way over a certain line of ditch, with the
right to convey water therein. and the White Rock Company
agreed to supply to the North Boulder Company all water which
its ditch would carry, in its then condition, or as it might after-
wards be enlarged. In 1882 by a decree entered in adjudica-
tion proceedings the North Boulder Company was awarded sev-
eral volumes of water of different priorities, considerably exceed-
ing what it at any time, then or afterwards, beneficially applied.
In an action brought by an appropriator senior to the White Rock
Company, to declare a forfeiture by the North Boulder Company
of the water so decreed to it and never benefficially applied, the
White Rock Company claimed that the effect of the contract of
1874 was to transfer to it all the waters so decreed to the North
Boulder Company, and which had never been applied by that
company to beneficial uses. Considering that in the adjudication
proceedings the White Rock Company asserted no claim under
the contract of 1874, that no such claim was ever asserted until
1911. and that in the intervening years, up to 1882, the North
Boulder Company had from time to time increased the volume
which it diverted, and the acreage which it watered, this conten-
tion was rejected. North Boulder Co. v. Leggett Co., 522.
Performance. Literal performance not required. Trivial de-
fects or deviations from a contract for the erection of a house are
to be compensated by an allowance in respect thereof. The
entire contract price is not to be denied to the building. Louthan
v. Carson, 473.
The evidence examined and held to establish substantial per-
formance of the builder's contract. Id.
Illegal-Parties in Pari Delicto. Defendant bank sought accom-
modation from plaintiff, and, upon full value received, transferred
to the latter, with an unqualified indorsement, sundry promissory
notes of its customers, it being agreed that plaintiff should receive
6% of the interest to be paid thereupon, and defendant the residue.
The notes as they fell due were transmitted to defendant for col-
lction, and were renewed by notes payable to defendant, the de-
fendant returning the renewal notes, with its general indorsemenet,
and 6% of the interest collected thereon. Later, in order to mis-
lead the Bank Examiner as to defendant's liabilities, it was
verbally agreed that plaintiff should stamp defendant's indorse-
ment "without recourse", and write to the Examiner that it held
no paper re-discounted to it by defendant, and that defendant
would remain liable to plaintiff while the qualified indorsement re-
mained in force, and would afterwards re-instate upon the notes,
or the renewals thereof, its general indorsement. For a year
afterwards the renewal notes were returned to plaintiff indorsed
without recourse, but subsequently, on demand of plaintiff, all the
renewal notes were returned to it, with defendant's general in-
dorsement thereon, and this was continued for a year. There-
upon, plaintiff having sent the notes to defendant for collection, it
collected interest and taking new notes to itself it returned them
indorsed, without recourse; and declined to change this endorse-
ment, or return the notes last transmitted by plaintiff. Plaintiff
thereupon brought this action against defendant as indorser.
Defendant had received, in interest, during this course of busi-
ness, over $6,000, as its share of the interest collected. Held that
the agreement between the two banks by which the transaction
assumed the false appearance of an actual out and out purchase
of the notes, was not only unlawful but reprehensible; but the
notes bearing the false indorsement without recourse being all
of the past, and the parties in pari delicto, the defendant having
received full value for its unqualified indorsement, the court ought
not to lend its aid to relieve it of liability thereon. First National
Bank v. Cripple Creek Bank, 37.
Ratification. In the year following their purchase of a tract
of land, defendants brought an action against the vendor for the
breach of a covenant of the latter to procure a purchaser of the
lands at an advance upon the price paid by defendants. Held an
affirmance of the contract, barring a subsequent action for a
rescission of contract of purchase on the ground of fraud. Halm
v. Wright. 419.
oral Waiver of Conditions. One who waives the provisions of
a written contract, and carries the same into execution, will not
be heard to afterwards plead non-performance of the conditions so
waived, as the ground of a prayer for rescission. Milliken v.
Neil, 412.
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