not obliged to make, specifically called the attention of the court and defendants to the vice in the affirmative defense of this answer. The court overruled the motion, and the defendants did not see fit to amend their pleading. This defense is fatally defective in the foregoing particulars, as well as in other respects which the parties have not referred to. If other authority than that found in our own decisions were necessary, the following cases furnish it: Suit v. Woodhall, 116 Mass. 547; Jamison v. King, 50 Cal. 132; 6 Enc. Pl. & Pr. 270; Bryant, Code Pleading, 204. In Suit v. Woodhall, the court, by Gray, C. J., in considering objections made to an answer to a declaration on an account for the price of intoxicating liquors, held the answer before the court not sufficient to warrant evidence that the liquor was sold in violation of law, because the pleading contained no clear or precise allegation that the goods sued for were sold illegally, "but only that, if it shall appear that the goods were sold as alleged in the declaration, it will also appear that they were sold in violation of law. The issue thereby tendered is, not whether there was an illegal sale, but whether in a certain contingency it will appear that there was an illegal sale. ** And if he (plaintiff) had filed a replication, denying all the allegations in the answer, his denial would in like manner have been limited to what might be made to appear, and no issue would be joined upon what the fact was." The court in the case at bar permitted defendants to introduce in support of this defense evidence which tended to show, not only that the plaintiff, as mortgagee, authorized the mortgagors to sell the property, but by his failure within a reasonable time after the sale to repudiate it, after full knowledge of the facts, he was estopped to assert this demand against the defendants. This was clearly prejudicial error, because such issues were not tendered. There is no positive allegation in this defense that the sale was authorized, and only by recital, which is wholly insufficient, was there even an attempt to allege facts essential to a plea of estoppel.

3. Even though such issues had been present, the court erred in not properly instructing the jury as to the law relating to the inaction of a principal after the sale by an unauthorized agent. In Union M. Co. v. Rocky Mt. Nat. Bank, 2 Colo. 262, 363. Hallett, C. J., draws the distinction between the cases where mere silence of the principal after knowledge of the facts is to be considered only as evidence of acquiescence or ratification, and cases where it will operate as matter of law by way of estoppel. Where the sale is completed before knowledge of it reaches the alleged principal, and no change in the condition of the parties can occur from his delay to approve or disapprove it, mere silence may be evidence of ratification, but it does not work as an estoppel. See, also, Breed v. First Nat. Bank, 4 Colo. 507.

4. It is the law that there is no rule for the operation of the ratification by a principal of the unauthorized act of an agent, unless the latter at the time of the sale avowedly acts as an agent. The authorities seem to be unanimous upon this point. Story on Agency (9th Ed.) § 251a; 1 Chitty on Contracts (11th Am. Ed.) 293; Puget Sound Lumber Co. v. Krug. 89 Cal. 237, 243, 26 Pac. 902; Crowder v. Reed, SO Ind. 1. 10; Richardson v. Payne, 114 Mass. 429; Mechem on Agency, § 127. We think it appears that the mortgagors did not avowedly act as agents of the mortgagee, but rather in their own right as owners. At least, there was evidence that they professed to act in their own behalf. And yet the court proceeded as if ratification could be had, regardless of the capacity in which the seller acted. This was error.

5. The court, over the objection of plaintiff, admitted evidence that similar acts of sale of mortgaged property by these mortgagors and other persons had been approved by the plaintiff as mortgagee. This was on the theory that such acts threw light upon the present transaction, and rendered probable defendant's claim that this sale also was authorized. There is a question as to whether, in the light of the subsequent explanation of the witness by whom such acts were sought to be proved, this evidence should have been allowed to remain in the case, or considered even as tending to prove the custom alleged; but, assuming that the evidence was properly retained, it alone is not sufficient. To make it so, it should have been accompanied by other evidence that defendants knew of such approval at the time they made the purchase; for, if they did not know of such a practice, they could not have relied upon it. Martin v. G. F. Mfg. Co., 9 N. H. 51; Schoenhofen Brewing Co. v. Wengler, 57 Ill. App. 184.

6. Probably the question to which most of the evidence is directed and concerning which there is the greatest conflict is as to the identity of the sheep and lambs which came into defendants' possession with those described in the mortgage. There was evidence in the record tending to show that defendants themselves did not buy any sheep of plaintiff's mortgagors, but that the same were purchased by a third person and sold to the defendants by him. There is also evidence tending to show a sile direct to the defendants by the mortgagors, and that in driving the sheep from their ranch to the railroad station, and after they were received at the yards, other sheap and lambs were turned into the pens with the mortgaged sheep. and that such mingling was done both by the mortgagors and the defendants as their vendees. The plaintiff asked an instruction that if the shop described in the mortgage were by the mortgagors wrongfully sold and delivered to the defendants, and if they, or either of them, purposely or carelessly mingled them with other sheep,

the burden was upon defendants to show what sheep were, and what were not, described in the mortgage. The instruction should have been given, and its refusal was prejudicial error. Adams v. Wildes, 107 Mass. 123; Burks v. Hubbard, 69 Ala, 379. In the Burks Case it was also held that where personal property covered by a mortgage is traced into the possession of one who had constructive notice the: eof, and the purchaser seeks to defend his possession by proving that it was rightful, the burden of proving such defense rests upon him; and, if he seeks to do this by showing a purchase of the property from the mortgagor acting as the mortgagee's agent, the burden is upon him to show that the mortgagee had such power, and that it was strictly followed. The court erred in refusing so to charge. Upon the question of the identity of the property, and the various errors assigned to the rulings on the evidence, we forbear discussion. In the light of the foregoing announcement of the law applicable to the case, such questions, or some of them, will not be likely to arise in case of another trial.

The judgment is reversed, and the cause remanded, with leave to the parties to amend their pleadings as they may be advised, and, if further proceedings be had, that they be in accordance with the views herein expressed. Reversed.

STEELE, C. J., and GABBERT, J., con

cur.

(39 Colo. 347)

L. BALDWIN & CO. et al. v. PATRICK. (Supreme Court of Colorado. April 1, 1907. Rehearing Denied Oct. 7, 1907.)

1. CONTRACTS-PERFORMANCE.

A buyer of cattle contracted with a third person, who agreed to advance the funds necessary to carry out the contract of sale, to manage the cattle, dispose of them, and pay to the buyer half of the net proceeds. The third person retained a part of the cattle delivered by the seller, but there was nothing to show that they were marketable, or that they could have been sold at a profit, or that he acted in bad faith in failing to dispose of them. Held, that he was not chargeable with the cattle unsold, or liable to the buyer for a half of their value. 2. REFERENCE - REPORT OF REFEREE - EVI

DENCE.

One liable under his contract for a half of the value of cattle in his possession is not liable for an amount estimated by a referee without any evidence on which to base it.

3. PARTNERSHIP-ELEMENTS.

The elements of a partnership are community of loss, of title, of expenses, and common right to dispose of property for purposes of a partnership.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38. Partnership, §§ 1-14.]

4. SAME AGREEMENT CREATING RELATION.

An agreement, whereby a third person bound himself to advance funds necessary to carry out a contract of sale, to manage the property, dispose of the same, and pay to the buyer a half of the net proceeds, does not create

a partnership between the third person and the buyer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 13-16.]

5. CONTRACTS-PERFORMANCE.

A third person, who agrees with the buyer of cattle to advance the funds necessary to carry out the contract of sale, to manage the cattle, to dispose of them, and to pay to the buyer a half of the net proceeds, gives to the buyer a right of action where all the cattle bought under the contract have been, or by the exercise of reasonable diligence might have been, sold by the third person, or where by reason of his fraud any of the cattle remain unsold.

Appeal from District Court, Pueblo County; N. Walter Dixon, Judge.

Action by Charles Gause, prosecuted on his death by George F. Patrick, administrator, against L. Baldwin & Co. and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

This is a proceeding instituted by Charles Gause against two partnerships, each of which was known as L. Baldwin & Co., and designated in the complaint as L. Baldwin & Co. No. 1, and L. Baldwin & Co. No. 2. The former was composed of Levi, J. C., Fred, and Lee Baldwin; the latter, formed the 26th of June, 1899, was composed of the same parties and Anna and Mary Baldwin and Edward F. Swift. Gause, having died during the pendency of the action, George F. Patrick, administrator of his estate, was.substituted as plaintiff. The facts upon which the controversy arises, as alleged in the complaint and found by the court below, are, in brief, as follows: On the 23d of September, 1896, Gause had an agreement with T. F. Wright, manager of the Western Union Cattle, Land & Irrigation Company, for the purchase of a herd of cattle known as "Anchor X Cattle." Being financially unable to purchase and handle the cattle under this agreement, he made an agreement with the firm of Levi Baldwin & Co. No. 1 to the effect that the company should advance the necessary funds to carry out his contract with Wright, should receive and pay for the cattle delivered under said contract, and would assume full control and management of, and handle and care for, and dispose of, the cattle delivered, and that, after deducting the purchase price advanced by the company and the necessary expenses for the handling and caring for the cattle, out of the proceeds realized from the sale thereof, the remainder of the proceeds should be divided equally between them; that in pursuance of this understanding and agreement, on October 1, 1896, L. Baldwin & Co. No. 1 entered into a written contract with the Western Union Cattle, Land & Irrigation Company for the purchase of its herd of cattle estimated at 3.000 head, more or less, at $10.50 per head. Under and in pursuance of this contract there were delivered to L. Baldwin & Co. No. 1, 3,416 head In of cattle, for which they paid $33,883.50. March, 1897, L. Baldwin & Co. No. 1 entered

dence as tending to show a partnership. Where, however, an agreement between two or more persons, in relation to the prosecution of an enterprise, provides that one of their number shall incur no risk, and be chargeable with no loss, the agreement is not one of partnership." Under the contract with the Western Union Cattle, Land & Irrigation Company and the contract with Simpson & Bourbonia, the title to the cattle purchased and their increase vested in L. Baldwin & Co. No. 1. They had the care, management, and the sole power to dispose of them. There was no community of loss between Gause and the company. If the cattle had died after the purchase by the company, or the venture had proven a failure for any other reason, the whole loss would have fallen upon the company, and Gause would not have been answerable to the company for any part of the loss it may have suffered thereby. As we construe the agreement between Gause and L. Baldwin & Co. No. 1, it did not constitute a partnership between them, but is evidence of the fact that Gause turned over to L. Baldwin & Co. his agree ment with Wright for the purchase of the Anchor X cattle and all his rights thereunder, in consideration that the company should assume all responsibility of the purchase, care, and disposition of the cattle, and account for, and pay to him, one-half of whatever net profit should be realized from the transaction when consummated. Under this contract, a right of action would exist when all the cattle purchased by L. Baldwin & Co. No. 1 in pursuance of it had been, or by the exercise of reasonable diligence might have been, sold, or when it is shown that, by reason of the fraud or willful misconduct on the part of the defendant companies, any of them remain unsold.

The judgment is reversed, and the cause remanded.

Reversed.

STEELE, C. J., and BAILEY, J., concur.

(40 Colo. 354)

PARK v. PARK et al. (Supreme Court of Colorado. July 1, 1907. Rehearing Denied Oct. 7. 1907.)

1. HUSBAND AND WIFE-ALIENATION OF AFFECTION EVIDENCE.

In an action by a wife for alienation of affection of her husband, evidence held insufficient to justify a recovery.

2. WRIT OF ERROR-ADMISSION OF EVIDENCEREVIEW.

Where both parties assumed that certain declarations of plaintiff's husband made to her during the marriage were inadmissible, without the husband's consent, and on his refusal to consent no attempt was thereafter made to prove such declarations, the admissibility thereof without such consent was not reviewable by writ of error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2. Appeal and Error, § 1066.]

degree to prove her cause of action or corroborate her testimony, but contradicted her in every important particular, she was not injured by their exclusion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4152.]

Error to District Court, City and County of Denver; F. T. Johnson, Judge.

Action by Julia Park against William S. Park and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Geo. W. Taylor and W. T. Rogers, for plaintiff in error. M. J. Bartley, for defendants in error.

CAMPBELL, J. This is an action by Julia Park, wife of Charles H. Park, to recover damages against defendants, the two sisters and the son of Charles H. Park, for alienating her husband's affections, harboring him, and causing him to abandon and desert her. The material allegations of the complaint were denied, and upon trial to the jury, after both parties had introduced their evidence, the court, upon motion of defendants, directed the jury to find a verdict in their favor. From that judgment plaintiff sued out this writ of error.

The errors assigned concern the legal sufficiency of, and the rulings of the court upon, the evidence. It is doubtful if plaintiff has conformed to the practice governing reviews in this court, so as to entitle her to be heard upon the matters argued in her counsel's brief; but we shall disregard defendants' motion to dismiss for such failure, and dispose of this writ on its merits.

Counsel for plaintiff says that a defendant who moves for a verdict admits, for the purpose of the motion, that the evidence received in behalf of plaintiff is true; and, if it is legally sufficient to support a verdict, the motion cannot be granted, citing Schwenke v. Union Depot Co., 12 Colo. 341, 345, 21 Pac. 43, and Denver Tramway Co. v. Owens, 20 Colo. 107, 119, 36 Pac. $48. Counsel also says that any defects in plaintiff's proofs, it aided or cured by the defendants' own evidence, cannot be taken advantage of by the latter upon this review. He therefore says that, unless the court, upon all the evidence produced, would have set aside a verdict had one been returned in plaintiff's favor, this judgment must be reversed. For our present purpose, let such contention be granted. We proceed, first, to examine the evidence to sce if it is legally sufficient to prove plaintiff's cause of action. The following material facts are not in serious controversy: All the parties lived in Pennsylvania, when we first hear of them. In October, 1879, the plaintiff and Charles II. Park were married. The first wife of Charles had then been dead about eight years. During the time between the two marriages, Elizabeth, the sister of Charles, kept house for him, and his son William, a boy 14 years old at the time of the second marriage, lived with the family, and