The court sustained the motion, and gave judgment upon the complaint for the amount of plaintiff's demand, to which ruling and action of the court the defendant duly excepted.

Two questions are presented for our consideration by the assignment of errors, viz: First: Did the court err in striking the answer from the files? Second: Were the allegations of the complaint sufficient to invest the court with jurisdiction of the subject-matter of the controversy?

The objection to the answer, that it presents an immaterial issue cannot be sustained. The averments, that the judgment was not assigned by McLean to Brewer; that Brewer is not the owner of the judgment, and that McLean is the owner of the judgment, go directly to the plaintiff's right of action. His right of action depends upon the averment of the complaint, that the judgment has been assigned to him, and proof of that fact is essential to a recovery of a judgment in his favor against the defendant.

This being so, a denial of the truth of the allegation necessarily presents a material issue. It only remains, therefore, to inquire whether the denial, as pleaded, was in proper form.

The answer was made upon information and belief, and it is probable that the court adjudged it to be a sham pleading, because the averments contained therein were not in the positive form. The provision of the civil code upon this subject is as follows:

"In denying any allegation in the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state, as to any such allegation, he has not, and cannot obtain, sufficient knowledge or information upon which to base a belief:" Code, Revision 1883, sec. 61.

Whether a bona fide assignment of the judgment had been made to the plaintiff, and whether the plaintiff was the owner thereof at the time of bringing his suit, were facts presumptively within the knowledge of the plaintiff, but not presumptively within the knowledge of the defendant."

The defendant has the right to controvert and put in issue every material averment of the complaint. This is to be done by means of specific denials, and such denials may be made upon information and belief when the facts are not presumptively within the defendant's knowledge.

It does not apper, from the record, that the court below had any other information that the defendant's answer was a sham than the answer itself, which, being in substance and form in compliance with the requirements of the statute, was sufficient to put in issue the allegations of the complaint, which it denied.

The action of the court, therefore, in striking the answer from the files and rendering judgment upon the complaint, was not a mere irregularity, as insisted upon by one of the counsel for the appellee, but an error which affected the substantial rights of the appellant.

The next question is, whether the allegations of the complaint were sufficient to give the county court jurisdiction of the case.

The objection to the complaint is, that it fails to allege in the words of the statute, that the amount in controversy did not exceed the sum of two thousand dollars: Gen. Laws, 1883, p. 244, sec. 2. There is nothing in the section referred to that indicates an intention to require the jurisdictional averment to be in a prescribed form. The import of the language employed therein, is, that it must affirmatively appear from the complaint that the value of the property in controversy, or the amount involved for which relief is sought, does not exceed the sum of two thousand dollars.

The effect of the ruling in Bamdoller v. Patten, 5 Colo., 46, is that the requirement of the statute was satisfied by averments of the complaint which were equivalent to an allegation that the amount in controversy did not exceed the sum of two thousand dollars.

In Hume v. Duff, Id., 574, an action for possession of a mining claim, together with damages for its detention, in which case there was no allegations of the value of the property involved, we held it to be essential to the jurisdiction of a county court that the complaint contain an allegation that the value of the property does not exceed two thousand dollars, or that it contain an equivalent allegation.

Applying the principle announced in the above cases, to the case at bar, we have no difficulty in holding that the statutory requirement has been substantially complied with. It affirmatively appears from the complaint that the relief demanded is a money judgment, and that the amount involved for which relief is sought, is the sum of two hundred and eighty-three dollars and twenty-nine cents, with interest thereon at the rate of twelve per centum per annum from the fourteenth day of August, 1879. Judgment is demanded for said sum of money, and interest thereon at the rate and for the time stated.

Judgment was rendered for the plaintiff on the thirty-first day of January, 1881, for the sum of three hundred and thirty-five dollars and sixty-five cents, that being the amount of principal and interest

then due.

It affirmatively appearing, therefore, from the allegations of the complaint, that the amount involved for which relief was sought was within the jurisdiction of the court, we hold that the error in this behalf was not well assigned.

On account of the error first assigned, the judgment will be reversed and the cause remanded.

Judgment reversed.

SAXONIA MINING AND REDUCTION COMPANY v. COOK.

Filed October 31, 1884.

MASTER AND SERVANT-RIGHTS OF SERVANT DISCHARGED before End OF TERM.-A servant, who is employed for a definite period and discharged before the expiration thereof, without fault on his part, may either treat the contract as rescinded, and at once bring an action for the value of the services rendered; or he may treat the contract as continuing, and sue for a breach thereof, and recover his probable damages occasioned by the breach; or, in some cases, he may defer suit until the end of the term, and sue for the actual damage he has sustained, which, however, can in no case exceed the wages for the entire term.

THE SAME MEASURE OF DAMAGES-WHEN SERVANT MUST SECURE OTHER LABOR.-The measure of damages in the latter class of cases is not the amount of wages stipulated in the contract for the entire term, but the actual loss, to be established by proof, although the amount of the agreed wages may be taken as the measure of damages prima facie, or in the absence of any other showing. The servant cannot recover the wages accruing for the balance of the term as a matter of course. He is bound to use reasonable efforts to secure labor elsewhere. If he has secured labor elsewhere. or by reasonable diligence might have done so, the amount received, or that might have been received, for such labor, must be deducted from the amount of the damage occasioned by the breach of contract of employment. The burden of showing that such other labor was or might have been obtained, is on the defendant.

PRINCIPAL AND AGENT SECRET INSTRUCTIONS-GENERAL AGENT.-The power of a general agent cannot be restricted by secret instructions of his principal, so as to affect a party dealing with such agent without notice of the secret instructions.

THE SAME-BREACH OF CONTRACT-HOW ALLEGED-WRONGFUL DISCHARGE.-In an action to recover damages for breach of a contract, by the terms of which the defendant agreed to employ the plaintiff for a certain term. and at stipulated wages, an averment that "the defendant neglects and refuses to keep and perform its said agreement, to the damage of the plaintiff," is not a sufficient allegation of the breach of contract. If the breach consisted in a wrongful discharge of the plaintiff before the end of the term of employment, such wrongful discharge, as a breach of the contract, should be averred as the fact constituting the cause of action.

APPEAL from the district court of Arapahoe county. The opinion states the facts.

Decker & Yonley, for the appellant.

Ingersoll & Crater, Leander H. Long, and Sanford C. Hinsdale, for the appellee.

STONE, J. The only question we need to consider in this case is, whether the complaint is sufficient to support the judgment. The complaint contains two counts, the second of which is wholly insufficient for any purpose, and cuts no figure in the case.

The first count is as follows, viz.:

"The said plaintiff, complaining of the said defendant, complains and alleges:

"That on the 27th day of May, A. D. 1880, the said defendant entered into a certain agreement with the plaintiff, in and by which the said defendant hired and employed the said plaintiff for the term and period of one year, from the fifteenth day of April, 1880, to do and perform certain service and labor, and promised and agreed then and thereby to pay the said plaintiff the sum of one hundred and twenty-five dollars per month for the first three months of said term, and the sum of one hundred and fifty dollars per month for the remaining months of said term; that the said plaintiff then and there, in pursuance thereof, entered into the amployment of said company, and performed the service required, and is still able and willing to comply with the terms of said agreement, upon his part

to be kept and performed; that the said defendant neglects and refuses to keep and perform its said agreement, to the damage of this plaintiff of the sum of one thousand and ninety dollars. That no part thereof has been paid."

The answer of the defendant company below is a specific denial of each and every of the allegations of the complaint as above set forth, and further, denies that it is indebted to the plaintiff upon any contract whatever, or for work and labor performed by the plaintiff for the defendant; but says that whatever labor has been performed by plaintiff for the defendant, has been paid for by the defendant, and received by the plaintiff in full satisfaction and discharge of said work and labor."

The facts established by the evidence on trial, are, that the plaintiff was engaged by the defendant to perform services of work and labor as a refiner in the smelting works of the defendant company for the term of one year, from April 15, 1880, upon the terms as to wages, the same as alleged in the complaint; that in accordance with this engagement, plaintiff entered upon said work and performed the same in a satisfatory manner up to the seventh of August, 1880; that he was paid for the same from time to time at the rate aforesaid; that on the seventh day of August he was paid in full for services up to that date, when the works were closed by the defendant, and plaintiff with the other employees of the works was discharged, the only reason for such discharge being that the defendant chose to shut down the works on account of alleged dissatisfaction with the superintendent of the company; that thereafter the plaintiff remained at the locality of the defendants' works where he had been employed, until the spring of the next year, 1881, without engaging in other work; that from November 1, 1880, until March 1, 1881, he had the keys of said smelting works, and during that time did some work without being specially re-engaged by defendant, and without having been paid anything therefor; that the keys were given him by the same superintendent who engaged him on behalf of the company in the first place, and that this latter work was done by direction of said superintendent; that he did no work after the twenty-fifth of February, 1881, for the reason that no more work was provided by defendant for him to do.

The only matters set up by defendant on the trial were, first, that the said superintendent was not authorized to employ plaintiff or any other employes except on condition that such employe might be discharged at the pleasure of the president of the company (who resided outside the state of Colorado), or upon one day's notice; but, with this condition, said superintendent had "full and complete power from the defendant company to hire, employ and discharge any and all workmen and employes of said company;" and, second, that the plaintiff was discharged and paid in full on the 7th of August, 1880, and that, therefore, defendant was not liable to plaintiff for anything after that date.

Plaintiff admitted payment in full to said date for services rendered up to that time, but testified that he did not understand that he was discharged under the contract.

The suit was brought before the expiration of the year for which plaintiff claims he was engaged, to wit: October 22d, 1880. The trial was held in December, 1881. Where one is employed to serve for a definite term, as for a year, and is discharged before the expiration of the term, without fault on his part, he has a right of recovery, either for the balance of wages due, or damages for the loss he may have suffered by reason of the wrongful discharge.

"A person employing another for a definite term is bound to provide him with labor for the whole term, and cannot deduct from the wages of the servant for time he was not at work, when the failure results from his own fault. The fact that the business proves unprofitable is no excuse. If the master chooses to go out of the business, he can do so, but must pay the servant his actual damages for not employing him for the stipulated term": Wood's Law of Master and Servant, sec. 97, and cases cited.

When a servant is discharged without a sufficient legal excuse, before the expiration of his term, he has his choice of two remedies: he may treat the contract as rescinded, and at once bring an action for the value of the services rendered; or he may treat the contract as continuing, and sue for a breach thereof, and recover his probable damages, occasioned by the breach, or, in some cases, he may defer suit until the end of the term, and sue for the actual damage he has sustained, which, however, can in no case exceed the wages for the entire term: Id., sec. 125, and authories cited: Smith's Master and Servant, p. 91; Southerland on Damages, p. 471.

Under the remedy in the latter class of cases the measure of damages is not the amount of wages stipulated in the contract for the entire term, but the actual loss, to be established by proof, although the amount of the agreed wages may be taken as the measure of damages, prima facie, or in the absence of any other showing. He cannot recover the wages accruing for the balance of the term as a matter of course. He is bound to use reasonable efforts to secure labor elsewhere. If he has secured labor elsewhere, or by reasonable diligence might have done so, the amount received, or that might have been received for such labor, is to be deducted from the amount of the damages occasioned by the breach of the contract sued upon: Wood, Master and Servant, sec. 125, and cases cited; Southerland on Damages, p. 473.

But while the defendant in such case is entitled to mitigate the damages to the extent of what the plaintiff might have earned from other parties during the term, the burden of establishing such mitigating facts is upon the defendant: Id., sec. 132; Howard v. Daly, 6 N. Y., 362; Barker v. Knickerbocker Life Ins. Co., 24 Wis., 630. The instruction to the superintendent by the president of the defendant company, limiting the power of the former to employ only