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SUPREME COURT OF OREGON. (12 Or. 503)

SCHNIDER V. WHITE and others.

Filed November 17, 1885.
CONTRACT-ACTION BY THIRD PARTY, FOR WHOSE BENEFIT MADE.

An action can be maintained by A. upon a promise made by B. upon a val-
uable consideration moving from C. to pay A. a sum of money, even though
A. was not informed thereof until afterwards.
A. Lenhart, for appellants, S. S. White and others.
Frank V. Drake, for respondent, H. Schnider.

THAYER, J. The only question in this case which the court deems of sufficient importance to be noticed, is whether the complaint in the justice's court contained a cause of action. The following is a copy of the said complaint:

“ Plaintiff for cause of action against defendant alleges that during the year 1884, James Dickson, at the special instance and request of defendant, rented to defendunt one store for the period of ten days, which rent was of the reasonable value of $10, and for which defendant promised and agreed to pay to plaintiff the reasonable value thereof, and that the reasonable value thereof was and is $10, and that no part thereof has been paid, although demanded; that said Dickson assigned to plaintiff said claim on December 8, 1884, and that there is now due and owing from defendant to plaintiff the sum of $10, over and above all legal claims and set-offs.”

The only objection urged against the complaint was that the defendant promised and agreed to pay the plaintiff the rent, instead of agreeing to pay it to Dickson. I have no doubt that the pleader intended to allege that the defendant promised and agreed to pay the rent to Dickson. That would have been more natural. Having rented the premises of the latter, he would have been more likely to have promised to pay him the rent. But taking the complaint as literally true, I think, beyond doubt, it contained a cause of action. The defendant, for a valuable consideration moving from Dickson, promised to pay the plaintiff a sum of money, and the latter can enforce it. That an action can be maintained by A. upon a promise made by B. upon a consideration moving from C. to pay A. a sum of money, even though A. was not informed thereof until afterwards, is too well settled to require authority to support the proposition.

The judgment of the circuit court will therefore be reversed, and the cause remanded to that court, with directions to dismiss the writ of review.

See Baker v. Eglin, (Or.) ante, 280, and note, 281.

(12 Or. 505)

NORMANDIN V. GRATTON.

Filed November 19, 1885. ACCOUNT STATED EVIDENCE.

A settlement between the parties is prima facie to be taken as a settlement of all demands, but is not conclusive, and is no bar to a recovery for matters not included in the settlement, though existing at the time, and evidence is admissible to show that certain matters were not so included. X. N. Steeves, for appellant, E. Gratton.

Alfred N. Sears, Jr., and Henry E. McGinn, for respondent, Octave Normandin.

LORD, J. The question asked and answered by the witness was evidence tending to rebut the presumption of the settlement alleged, including all demands between the parties, and was admissible. It is conceded that a settlement between the parties is prima facie to be taken as a settlement of all demands, but is not conclusive, and is no bar to a recovery for matters not included in the settlement, though existing at the time. Nichols v. Scott, 12 Vt. 47; Ryan v. Ranil, 26 N. H. 15. The object of the question was to show that the matter referred to was not included in the account stated, and thus rebut the presumption that it included all previous transactions. Whart. Ev. $ 1133, and notes. As such the question was admissible, and the objection was properly overruled. It is true the answer might have been more explicit and specified the transactions with more particularity, but, in failing to develop this, the plaintiff saw the risk of this evidence proving unsatisfactory for the purpose offered. And yet, if it was unsatisfactory to the adverse party, he had the opportunity of cross-examination, and could have compelled a further explanation. As it was, the parties were content to submit the matter to the tribunal whose province it was to adjudge the fact, and, as this resulted adversely to the appellant, it is not perceived how we can remedy it. To impeach an account stated, either fraud or mistake must be shown to exist; but that is not the question involved in this case. In respect to the note, it is sufficient to say that the same principle already discussed is applicable to it.

Upon this record we cannot do otherwise than affirm the judgment.

SUPREME COURT OF COLORADO,

(8 Colo. 414)

KIRKPATRICK V. WHEELER.

Filed November 13, 1885. 1. APPEAL-ORDER OF COURT- ENTRY.

On an appeal, the entry being a part of the record, the appellate court can

not look beyond such entry to ascertain what was ordered to be done. 2. SAME-BILL OF EXCEPTIONS-CONTRADICTION OF RECORD.

Anything contained in the record proper of a case cannot be contradicted on appeal by a bill of exceptions. Appeal from an order made by the district court, Pitkin county. E. O. Wolcott, for appellee. Patterson & Thomas, for appellants.

PER CURIAM. The order appealed from was made and entered of record by the court below during the progress of proceedings in the case of Kirkpatrick v. Fiske and others. The transcript before us shows that Kirkpatrick brought this action against the appellants to recover an interest which he claimed to own in the Emma mine, and also to recover his proportion of moneys alleged to have been realized by the defendants from the sales of ores taken from said mine. The order appealed from required one E. R. Holden, into whose hands moneys thus arising had come as receiver of the Emma mine, to de. posit all such moneys in his hands in the Denver National Bank, subject to the further order of the court. Jerome B. Wheeler, one of the above-named defendants, appealed from this order under the provisions of an act of the fifth general assembly entitled: “An act in relation to appeals to the supreme court,” etc., and attempted to make his appeal operate as a supersedeas, so as to prevent Holden from making the deposit.

The record concerning this appeal has been filed in this court, and upon this record we are asked to enter an order that these moneys be released, and that the district court pay over, or cause these moneys to be paid, to the appellant Wheeler, or to persons whom he may designate.

It will not be necessary for us to consider the legal effect of an appeal of this character, regularly taken under the act mentioned, since we must decline to grant the relief sought on other grounds, viz., the irregularity of the appellate proceedings. The order appealed from is a part of the record proper, and was duly entered therein by the clerk of the district court. To this entry alone can we look for information as to what was ordered by the court.

A bill of exceptions was prepared on behalf of Wheeler, and signed by the district judge, which purports to set out the same order, and it appears that the appellate proceeding is based to a large extent upon the order as it appears therein.

We find also that this order differs in some impor

tant particulars from the original order, as entered of record by the clerk of the court. It is a well-settled principle of law that what belongs to the record proper, and is contained therein, cannot be contradicted by anything contained in a bill of exceptions. It is not the office of a bill of exceptions to set forth anything which ought to appear in the record proper, but on the contrary its office is to preserve what would not otherwise appear of record. The record itself can never be qualified or varied by the bill of exceptions. The original order required E. R. Holden to deposit in the Denver National Bank all moneys then in his hands which he had received as receiver of the Emma mine, to be retained and held by the bank subject to the further order of the court. This order is general in its terms. It does not purport to be entered against any particular defendant, nor does it require that moneys claimed by a particular defendant only shall be so deposited. Neither does it command Holden to deposit a certain amount of money thus obtained and held by him. The order is that all moneys now in the hands of E. R. Holden, which came into his hands as receiver of the Emma mine, be deposited in the bank.

As set out in the bill of exceptions, the order requires E. R. Holden, late receiver of the Emma mine, heretofore discharged, to deposit in the Denver National Bank the sum of $12,962.21, money claimed by the defendant Wheeler, to be held subject to the further order of the court. Holden may have had this sum of money, and it may have been claimed by Wheeler, and he may have had other sums of money, claimed by others of the defendants, all of which came into his hands as receiver of the Emma mine. There is certainly an important variance between the two orders, and it is equally certain that the appeal, to be effective for any purpose, must have been regularly taken and prosecuted from the original order. The appealbond recites that the court made an order against the defendant Wheeler, requiring the said Holden to deposit certain moneys in his hands, belonging to said Wheeler, to-wit, the sum of $12,962.21, in the Denver National Bank, and we are asked to enter an order that this sum of money be released and be paid over to said Wheeler, or to persons whom he may designate. This undertaking does not correctly describe the order as incorporated in the record proper. Its conditions cannot be said to be based upon this order. We have no official information, therefore, that the only money in the hands of E. R. Holden which had come to him, and was being held by him as receiver of the mine, was the sum of $12,962.21, nor that this was the money of Mr. Wheeler. The object of the litigation, in part, was to discover how much money had been realized from the working of the mine, and to whom it belonged.

Without considering the effect of an appeal regularly taken from the original order, we must deny this motion, because of the irregularities stated. Motion denied.

(8 Ćolo. 399)

CITY OF DENVER V. VERNIA.

Filed November 16, 1885.

1. MUNICIPAL CORPORATIONS - LIABILITY FOR CHANGING GRADE OF STREETS

CONSTRUCTION OF CONSTITUTION.

Under section 15 of article 2 of the constitution any interference with a street, which permanently diminishes the value of the premises of a citizen, is as much a damage as though such damage was caused by a direct physical

injury thereto. 2. SAME-REASONABLE CHANGE-CARE.

But for injuries caused by a reasonable change or improvement to street and sidewalk, made in a careful manner, the abutting owner should not re

City of Denver v. Bayer, 7 Colo. 113; S. C. 2 Pac. Rep. 6, followed. 3. SAME-ESTABLISHED GRADE-NEGLIGENCE.

Where, at the time of purchase and improvement of property, the grade of the street and sidewalk had been established, which fact the purchaser should have known, but neglected to inquire respecting, he is not entitled to

damages in injuries for properly reducing street to established grade. 4. SAME – EXCAVATION, WANT OF DUE CARE IN- LIABILITY FOR ACTUAL DAM

AGES.

Where the city excavate the sidewalk to the established grade without at the same time excavating the street, thereby rendering access to and egress from the premises of the abutting property owner difficult, and cause the water and rubbish from street and adjoining lots to drain into and collect on the sidewalk, as thus excavated, the city will be liable for the actual damages sustained by reason of a want of reasonable or due care in thus changing the grade. Appeal from county court, Arapahoe county. Frank Telford and John C. Stallcup, for appellant. G. H. Gray, for appellee.

BECK, C. J. This is an action against a municipal corporation for damages to property fronting upon a public street, which damages are alleged to have been caused by the grading of a sidewalk immediately in front of such property. The trial was to the court without a jury, and the finding and judgment were in favor of the plaintiff below, Thomas Vernia; the amount thereof being the sum of $1,200. Exceptions were saved to the finding and judgment, which we deem sufficient to authorize us to review the case upon the law, under section 413 of the Code of Civil Procedure, which section provides as follows:

"Exceptions taken of opinions and decisions of the district and county courts, upon the trial of causes, in which the parties agree that both matters of law and fact may be tried by the court, shall be deemed and held to have been properly taken and allowed; and the party excepting may assign for error before the supreme court any decision or opinion so excepted to, whether such exception relates to receiving improper, or rejecting proper, testimony, or to the final judgment of the court upon the law and the evidence.

The plaintiff, Vernia, alleges in his complaint that on or about December 23, 1881, he purchased two lots fronting on Larimer street, in the city of Denver, between Twenty-fifth and Twenty-sixth streets, and that he afterwards erected two brick store buildings upon the surface of said lots, and fronting upon said street. He alleges that the street had been graded slightly at that point prior to his purchase,

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