TUCKER, Sheriff, etc., v. Parks, Assignee, etc. Filed April 1, 1884. JUDGMENT DIRECTED TO BE ENTERED in accordance with the former opinion, reported in 1 West Coast Rep. 264. APPEAL from the district court of Lake county, on rehearing. The facts are stated in the former opinion reported in 1 West Coast Rep. 264. R. D. Thompson, for the appellant. Markham, Patterson & Thomas, for the appellee. The COURT. Upon a full consideration of this case and examination of the numerous authorities cited in the briefs filed on the rehearing herein, we agree in concluding that upon authority this court has ample power to reverse and direct a judgment in the present case, and that the ends of justice will be subserved thereby. It is therefore ordered that the court below be directed to enter a judgment in accordance with the opinion heretofore rendered in this court therein for the sum of seven thousand seven hundred and fortysix dollars and twenty cents, the same being the amount of the value of the goods in controversy, as admitted by the pleadings, together with interest on said amount for the time indicated in the aforesaid opinion of this court, if the plaintiff shall elect to accept such directed judgment within ten days from the filing of the remittitur in the court below, otherwise the cause will stand for new trial as heretofore remanded. It is further ordered that the appellee Parks be adjudged to pay the costs of the proceedings in this court. Judgment directed. RIO GRANDE EXTENSION COMPANY v. COBY. Filed April 1, 1884. TIME CHECKS, ACTION ON BY ASSIGNEE.-A written acknowledgment of indebtedness in the form of a time check, as follows: COLORADO SPRINGS, COL., July 17, 1880. [Time check. Not negotiable. Payable on regular pay day.] Due Thos. Flinn, for labor in month of July, 188-, as laboror, twelve days at $1.25 Balance due.. Approved, T. S. BLACKBURN, Foreman. $15 00 3 05 $11 95 Is an assignable chose in action, on which an action may be maintained by the assignee, against the company, without an acceptance thereof by it, after proof of the agency of the maker. ACTION IN JUSTICE'S COURT.-Whether an action in the justice's court be with or without written pleadings, the facts essential to constitute a cause of action must be given in evidence, unless such evidence be waived by the conduct of the defendant, or by the averments or admissions of the answer. APPEAL from a judgment of the county court of El Paso county, entered in favor of the plaintiff. The opinion states the facts. William Harrison, L. M. Cuthbert and L. K. Bass, for the appellant. J. B. Cochran, for the appellee. HELM, J. This action was brought against the Extension Company by appellee as assignee and owner of five several instruments of writing known as time checks. The checks and also certain separate orders relating thereto, were received in evidence over the objections of appellant. There is no claim or proof that these orders were ever presented to or accepted by the company; the judgment, therefore, cannot rest upon them, as no liability on its part thereunder was shown. It must be sustained, if at all, exclusively by the time checks. They are alike in form, and the following sample is all that need be given here: COLORADO SPRINGS, COL., July 17, 1880. [Time check. Not negotiable. Payable on regular pay day.] Paymaster Rio Grande Extension Company: Due Thos. Flinn for labor in month of July, 188-, as laborer, twelve days at $1.25 per day. Deduct for board... Balance due.. Approved, F. T. GRISWOLD. Indorsements:] Witness: E. W. ROSENBERG. $15 00 3 05 .. $11 95 T. S. BLACKBURN, Foreman. His THOS. (X) FLINN. These checks purport to be written acknowledgments of indebtedness executed upon a settlement with the laborers to whom they were given. They are apparently made for the information and guidance of the paymaster of the company; and therefore we might perhaps infer that they were intended to represent obligations of the company. Each acknowledges a definite sum of money to be due from some one to a payee named therein, and is payable at a time certain; were there no restricting words, they would therefore be clearly negotiable under our laws: Gen. Stats., chap. 9. The indorsement of the payee's name upon the same is the proper mode of transferring the ownership of such instruments. But the words "not negotiable" appear written or printed across the end of these checks. It is unnecessary for us to consider whether the maker has power to take away by such declaration the attributes of negotiability bestowed upon the instruments by statute; for in the first place they still remain assignable thereunder; and, second, they are choses in action and as such the ownership might be transferred by assignment independent of statute. Under our practice (see section 3 of the code of civil procedure) the equitable rule relating thereto prevails, and the action should be in the name of the purchaser and assignee, because he is the owner and real party in interest. The principal effect of destroying the negotiability of these instruments is simply to render them subject in suit by the assignee to all defenses existing prior to notice of the assignment that might have been interposed to an action by the original payee: Pomeroy's Remedies and Remedial Rights, sec. 157; Combs v. Chandler, 33 Ohio St. 178; Moore v. Metropolitan Bk., 55 N. Y. 41; 1 Parsons on Contracts, 227. Objection is made that no acceptance of the time checks by the company was proven; but if a recovery can be sustained upon them at all, it is because they are acknowledgments of indebtedness made by the company itself; they are more in the nature of due bills than orders or bills of exchange, and no acceptance is necessary; this would be equally true could they be regarded as the drafts of one agent of the company upon another agent; such drafts are analogous to the case where an individual draws upon himself, and may be treated either as accepted bills or as promissory notes: 1 Daniel's Neg. Insts., sec. 424. The word approved" over the signature of one Griswold appears written thereon; it may be that Griswold was an agent of the company and that his approval was evidence to its paymaster of the justice of the debt, and genuineness of the time check; upon this subject we are not enlightened by the record; but this supposition, if true, only recognizes a private arrangement or regulation of the company, for its own convenience and protection, and in no way changes the character of the instrument so far as third parties are concerned. There is, however, a fatal objection to the recovery had in the court below. The action was originally brought before a justice of the peace, and was tried in the county court on appeal. There are, therefore, no written pleadings. No evidence was offered by the defendant, and hence we are not advised of its defenses except as they may be learned from the objections interposed at the trial and argued upon this appeal. From these sources it appears that the agency of the drawer of the time checks was not admitted. It devolved upon plaintiff in making his prima facie case to offer some proof upon this point. He introduced none whatever. He did not even show that the checks were ever presented to the defendant for payment. He simply offered them in evidence, together with the orders above mentioned, and rested. He might, perhaps, be excused under section 1949, general statutes, from establishing the genuineness of the signature of the maker, but some slight evidence that Blackburn was an agent of the company, authorized to execute such instruments, was indispensable: Angell and Ames on Corps., sec. 283; First Nat'l Bank v. Hogan, 47 Mo. 473; Northern Cent. R'y Co. v. Bastian, 15 Md. 501; Partridge v. Badger, 25 Barb. 171; Chapman et al. v. Chicago & N. W. R'y Co., 26 Wis. 303; Abbott's Trial Evidence, p. 40 and notes. Had the action been commenced in a court of record, the complaint would have averred the liability of defendant in appropriate terms. It might, perhaps, have been sufficient even though there was no special allegation of agency; but the absence of such averment would be overlooked simply because corporations can only act by agents, and in law the act of the agent is that of the principal. The liability of the principal could hardly be established without some proof of the agency. Whether the proceedings be with or without written pleadings, the facts essential to constitute a cause of action must be given in evidence; provided, of course, that such evidence be not waived by the conduct of the defendant, or by averment or admission in his answer. As already intimated, very slight proof, in cases like this, on the part of plaintiff, would be sufficient to raise a presumption of agency, and cast upon the defendant the burden of showing that no such relation existed between it and the party professing to act in its behalf. This rule is based upon the fact that knowledge on the subject is fully possessed by the defendant, and perhaps difficult of attainment by plaintiff. The motion for a nonsuit should have been allowed. The judgment will be reversed and the cause remanded for a new trial. Reversed. SNYDER v. VOORHIES, Executrix, etc. Filed April 1, 1884. ACTION FOR CANCELLATION-NECESSARY PARTIES.-In an action for the cancellation of a deed, alleged to have been fraudulently obtained by the grantee during his lifetime, the heirs and devisees of the deceased grantee are necessary parties. APPEAL from a judgment of the district court for Pueblo county, entered in favor of the defendant. The opinion states the facts. E. J. Bennett and G. Q. Richmond, for the appellant. STONE, J. The complaint of the appellant, as plaintiff in the court below, alleged that her husband, being indebted to James L. Voorhies, the husband of appellee, the defendant below, gave his promissory note therefor, payable to Flora L. Voorhies, the said defendant; that afterward, for the purpose of discharging said indebtedness, the plaintiff executed a deed conveying certain land lying in the county of Pueblo, to the said James L. Voorhies, and deposited the said deed as an escrow with one M. G. Bradford, to be delivered to the said grantee upon condition that the note aforesaid should be surrendered and delivered to said depositary; that subsequently the said Bradford offered to deliver the deed to the said grantee and his wife, the defendant, upon the condition aforesaid, but that both said grantee and defendant refused to comply with said condition, and deliver up the note; that afterward, in the absence of said Bradford from his house, the said grantee went to said house, and, upon pretense of examining said deed, obtained the same from the wife of Bradford, and without the knowledge or consent of said Bradford, or of the plaintiff, carried the deed away and had the same recorded fraudulently and in violation of the condition of its delivery, etc. That the said note has never been delivered up nor canceled, the said land has never been paid for, nor has there ever been any consideration for said deed. That neither the said James L. Voorhies nor his said wife, the defendant, has ever owned or been in possession of said land, but that the plaintiff is now and has been in continuous possession of said land and the ownership in fee thereof. That subsequent to the recording of the deed as aforesaid, the said James L. Voorhies died, leaving a will by which the said Flora, the defendant, was appointed the sole executrix thereof; that said will was probated in the county of Onondaga, in the state of New York, and said defendant thereupon qualified as such executrix, and entered upon the duties thereof. That the said deed so fraudulently obtained and recorded as aforesaid is a cloud upon the title of the said lands of the plaintiff, and the complaint therefore prays that the same be adjudged fraudulent and void; that it be set aside, canceled and expunged from the records, and for general relief. This complaint was demurred to by defendant, the demurrer sustained, and the plaintiff appeals to this court, assigning for error the ruling of the court below in sustaining the demurrer and rendering judgment thereon. The principal question raised by the demurrer, and the only one we will pass upon under the assignments of error, is whether the proper and necessary parties are made defendants in the action. On the part of the appellant, it is insisted that since there was no valid delivery of the deed, no interest in the premises passed by the conveyance to the decedent in his lifetime, and hence neither his heirs nor devisees have any interest to be affected by the decree prayed for in this action. While it is true that a deed delivered wrongfully and fraudulently, or without authority, and contrary to the conditions of its delivery, as averred in this complaint, like an undelivered deed, passes no estate or interest thereby, yet the averments of the complaint in this case are facts to be established upon trial, and while these averments are by the demurrer admitted to be true, as against the sole defendant sued as executrix, yet they are not admitted as against any one not a party to the action. Taking the complaint as true, the deed in question, having been properly executed, by a competent grantor, and upon a sufficient consideration, to a competent grantee, would, upon a good delivery, |