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he seeks to do so by showing a purchase of the lar point which they make is that the facts property from the mortgagor, acting as agent alleged will not support trover. The arguof the mortgagee, the burden is on him to show that the mortgagor had such power, and that

ment is that since the mortgage expressly it was strictly followed.

stipulates that the mortgagors may remain in Appeal from District Court, Larimer Coun

possession of the property until default, and

the plaintiff had not taken possession at the ty; Christian A. Bennett, Judge.

time of the alleged conversion, the mortgagors Action by Charles Ilfeld against Watson

might convey a good title before default, subZiegler and others. From a judgment for de

ject to the lieu of the mortgage; hence the fendants, plaintitf appeals. Reversed and re

sale, made, as it was, by the mortgagors be manded.

fore default, conveyed good title subject to Hlodges, Wilsou & Ilodges and Dorsey & the mortgage lien-citing Lafayette County Lodges, for appellant. John T. Bottom, for Baik v. Metcalf, 29 Mo. App. 384, and other appellees.

cases therein considered. The defendants

are supposing a case not made by the comCAMPBELL, J. Action for

for conversion.

plaint in the sense contended. The mortThe complaint in substance alleges that plain gagor, who, under the terms of the mortgage, tiff, as mortgagee of a flock of sheep and remains in possession, may, before default lambs, became thereby the special owner and or forfeiture, sell and convey title subject to entitled to the immediate possession thereof. the lien of the mortgage. Jones on Chattel The mortgage was given to plaintiff by Mateo Mortgages (4th Ed.) § 151, and authorities Lujan and wife, in the territory of New

cited. But the Missouri case cited by counMexico, and was intended as security for their sel, whatever may be said of it under its own promissory notes to him and for future ad facts, is not in point here. In that case the vances. Being of record, it was constructive

sale was made in recognition of the rights of notice in that jurisdiction. During the lien of the mortgagee, and the property was transthe mortgage the complaint alleges that the ferred subject to the lien of the mortgage. defendants wrongfully obtained possession of Yet even there the majority of the court the sheep and converted them to their own were of opinion that no demand was necesuse, for which damages are asked. The an sary to maintain thé action, which was one swer, after denying the allegations of the for conversion. Where, as in the case in complaint, contains this separate affirmative hand, the sale is an absolute one of the mortdefense: “That if any of the sheep or lambs gaged property by the mortgagor in exclusion now or heretofore in the possession of the of the rights of the mortgagee, such sale itdefendants ever belonged unto Mateo Lujan self works a default, and is a conversion of and Ambrosia V. Lujan, or either of them, the property, for which the mortgagee may and were intended to be included in said maintain trover without demand. Jones on chattel mortgage, if any such mortgage ever Chattel Mortgages (4th Ed.) $ 100. The disexisted, described in the plaintiff's complaint, tinction is made in Lafayette County Bank the plaintiff, by reason of his acts in per v. Metcalf, 40 Mo. App. 494, between a sale mitting the said Mateo Lujan to transfer, subject to the mortgage and one in antagsell, and convey the property pretended to be onism thereto. In the latter (ase it was held included in said mortgage, and by reason of that an antagonistic sale is a conversion, for, his failure and neglect to notify the defend if given effect, it would annihilate the securants within a reasonable time of his rights, ity. The complaint states a cause of action, if any, under said chattel inortgage, if any, and, assuming its allegations to be true, is barred and prevented from having any plaintiff was entitled to the possession of the claim or demand whatsoever against the de property, because of the default of the mortfendants, or either of them." The plaintiff gagor in breaking the covenants of the mortfiled a motion to make this defense more gage. Plaintiff had a special property in the detinite and certain, specifically pointing out mortgaged 'property, and was entitled to imthat it failed to allege any fact positively or mediate possession, and this action was maindirectly, was hypothetical, in the alternative, tainable without previous demand. Harringand by way of recital. The court overruled ton v. Stromberg-Mullins Co., 29 Mont. 157, the motion, and plaintiff by replication denied 74 Pac. 413; Sandager v. Northern Pac. Elethe averments of the answer. The jury re vator Co., 2 N. D. 3, 48 X. W. 138; Reynolds turned a verdict for the defendants, and from 1. Fitzpatrick, 23 Mont. 52. 57 Pac. 152; a judgment entered thereon plaintiff appeals, Horn v. Reitler, 12 Colo. 310, 21 Pac. 186; assigning a number of grounds for revers:l. Murphy r. Hobbs, 8 Colo. 17, 30, 5 Pac. 637; Because we must set aside the judgment for Mouat v. Wood, 22 Colo. 101, 1.3 Pac. 389. reasons presently stated, we shall not (om . The rule is elemental that in a leading ment union the evidence further than becomes facts should be stated directly and positivenecessary in discussing the legal questions in ly; not hypothetically or by way of recital. volved.

Such defects in a pleading, under the rule 1. First we discuss an objection here alle prevailing in this state, are subject to a gento the complaint. It was not raised at the eral demurrer. Leadville Water Co. v. Lealtrial: defendants on this review for the first ville, 22 Colo. 297, 15 Pac. 302. The plaintime questioning its sufliciency. The particu tiff, however, by his motion, which he was

not obliged to make, specifically called the at- 1 1. It is the law that there is no rule for tention of the court and defendants to the the operation of the ratification by a principal vice in the affirmative defense of this answer. of the unauthorized act of an agent, unless The court overruled the motion, and the de the latter at the time of the sale avowedly fendants did not see fit to amend their plead acts as an agent. The authorities seem to ing. This defense is fatally defective in the be unanimous upon this point. Story on foregoing particulars, as well as in other re Agency (9th Ed.) § 251a; 1 Chitty on Conspects which the parties have not referred to. tracts (11th Am. Ed.) 293; Puget Sound LumIf other authority than that found in our ber Co. v. Krug. S9 Cal. 237, 243, 26 Pac. 902; own decisions were necessary, the following Crowder v. Reed, So In:1. 1. 10; Richardson cases furnish it: Suit v. Woodhall, 116 Mass. v. Payne, 114 Jass. 129; Vecliem on Agency, 547; Jamison v. King, 50 Cal. 132; 6 Enc. § 127. We think it appears that the mortgalPl. & Pr. 270; Bryant, Code Pleading, 201. gors did not avoweilly act as agents of the in Suit v. Woodhall, the court, by Gray, C. mortgagee, but rather in their own right as J., in considering objections made to an an owners. At least, there was evidence that swer to a declaration on an account for the they professed to act in their own behall. price of intoxicating liquors, held the answer And yet the court proceeded as if ratificabefore the court not sufficient to warrant tion could be had, regardless of the capacity evidence that the liquor was sold in violation in which the seller acted. This was error. of law, because the pleading contained no 5. The court, over the oljection of plaintiff, clear or precise allegation that the goods sued admitted evidence that similar acts of sale for were sold illegally, “but only that, if it of mortgaged property by these mortgagors shall appear that the goods were sold as al and other persons had been approved by the leged in the declaration, it will also appear plaintiff as mortgagee. This was on the that they were sold in violation of law. The theory that such acts threw light upon the issue thereby tendered is, not whether there present transaction, and rendered probable was an illegal sale, but whether in a certain defendant's claim that this sale also was contingency it will appear that there was an authorized. There is a question as to whethillegal sale. * * And if he (plaintiff) er, in the light of the subsequent explanahad filed a replication, denying all the allega tion of the witness by whom such acts were tions in the answer, his denial would in like sought to be proved, this evidence should manner have been limited to what might be have been allowed to remain in the case, or made to appear, and no issue would be joined considered even as tending to prove the cusupon what the fact was." The court in the tom alleged; but, assuming that the evidence case at bar permitted defendants to introduce was properly retained, it alone is not suffin support of this defense evidence which cient. To make it so, it should have been tended to show, not only that the plaintiff, accompanied by other evidence that defendas mortgagee, authorized the mortgagors to ants knew of such approval at the time they sell the property, but by his failure within a made the purchase; for, if they did not know reasonable time after the sale to repudiate of such a practice, they could not have reit, after full knowledge of the facts, he was lied upon it. Martin v. G. F. Ugy. ('0., ! X. estopped to assert this demand against the H. 51; Schoenhofen Brewing Co. v. Wengler, defendants. This was clearly prejudicial er 57 Ill. App. 184. ror, because such issues were not tendered. 6. Probably the question to which most of There is no positive allegation in this defense the evidence is directel and concerning which that the sale was authorized, and only by re there is the greatest conflict is as to the cital, which is wholly insufficient, was there identity of the sheep and lambs which came even an attempt to allege facts essential to a into defendants' possession with those deplea of estoppel.

scribed in the mortgage. There was evi3. Even though such issues had been pres dence in the record tending to show that deent, the court erred in not properly instruct fendants themselves did not buy any sheep ing the jury a's to the law relating to the in of plaintiff's mortgagors, but that the same action of a principal after the sale by an un were purchased by a third person and sold authorized :gent. In Union M. (o. v. Rocky to the defendants by him. There is also eviMt. Nat. Bank, 2 Colo. 262, 363, Hallett, C. J., dence tending to show a sile direct to the draws the distinction between the cases chefendants by the mortgavors, and that in where mere silence of the principal after driving the sheep from their ranch to the railknowledge of the facts is to be considered road station, and after they were received only as eviilence of acquiescence or ratifica at the yards, other shepard lambs 'were tion, and cases where it will operate as mat turned into the pens with the mortgaged ter of law by way of estoppel. Where the sale sheep, and that such mingling was clone is completel before knowledge of it reaches both by the mortgagors and the defendants the alleged principal, and no change in the as their vendees. The plaintiff asked an incondition of the parties can occur from his ' struction that if the ship described in the (lelay to approve or disapprove it, mere si mortgage were by the mortgagor's wronglence may be evidence of ratification, but it fully sold and delivered to the defendants, does not work as an estoppel. See, also, and if they, or either of them, purposely or Breed v. First Nat. Bank, + Colo. 307.

carelessly mingleil them with other sheep,

the burden was upon defendants to show ! a partnership between the third person and the what sheep were, and what were not, de

buyer. scribed in the mortgage. The instruction

[Ed. Note.-For cases in point, see Cent, Dig. should have been given, and its refusal was

vol. 38, Partnership, $8 13-16.] prejudicial error. Adams v. Wildes, 107


A third person, who agrees with the buyer Mass. 123; Burks v. Hubbard, 69 Ala, 379.

of cattle to advance the funds necessary to carIn the Burks Case it was also held that ry out the contract of sale, to manage the where personal property covered by a mort cattle, to dispose of them, and to pay to the gage is traced into the possession of one who

buyer a half of the net proceeds, gives to the

buyer & right of action where all the cattle had constructive notice thereof, and the pur bought under the contract have been, or by the cha ser seeks to defend his possession by exercise of reasonable diligence might have been, proving that it was rightful, the burden of

sold by the third person, or where by reason of

his fraud any of the cattle remain unsold. proving such defense rests upon him; and, if he seeks to do this by showing a purchase Appeal from District Court, Pueblo Counof the property from the mortgagor acting ty; N. Walter Dixon, Judge. as the mortgagee's agent, the burden is upon Action by Charles Gause, prosecuted on his hiin to slow that the mortgagee had such death by George F. Patrick, administrator, power, and that it was srictly followed. against L. Baldwin & Co. and others. From 'The court erred in refusing so to charge. a judgment for plaintiff, defendants appeal. Upon the question of the identity of the prop- Reversed and remanded. erty, and the various errors assigned to the rulings on the evidence, we forbear discus

This is a proceeding instituted by Charles

Gause against two partnerships, each of sion. In the light of the foregoing announce

which was known as L. Baldwin & Co., and ment of the law applicable to the case, such

designated in the complaint as L. Baldwin & questions, or some of them, will not be likely

Co. No. 1, and L. Baldwin & Co. No. 2. The to arise in case of another trial. The judgment is reversed, and the cause

former was composed of Levi, J. C., Fred, remanded, with leave to the parties to amend

and Lee Baldwin; the latter, formed the 26th

of June, 1899, was composed of the same their pleadings as they may be advised, and,

parties and Anna and Mary Baldwin and if further proceedings be had, that they be in accordance with the views herein expressed. ing the pendency of the action, George F. Pat

Edward F. Swift. Gause, having died durReversed.

rick, administrator of his estate, was.substi

tuted as plaintiff. The facts upon which the STEELE, C. J., and GABBERT, J., con

controversy arises, as alleged in the comcur.

plaint and found by the court below, are, in

brief, as follows: On the 23d of September, (39 Colo. 847)

1896, Gause had an agreement with T. F. L. BALDWIN & CO. et al. v. PATRICK. Wright, manager of the Western Union Cat

tle, Land & Irrigation Company, for the pur(Supreme Court of Colorado. April 1, 1907. Rehearing Denied Oct. 7, 1907.)

chase of a herd of cattle known as "Anchor

X Cattle.” Being financially unable to pur1. CONTRACTS-PERFORMANCE. A buyer of cattle contracted with a third

chase and handle the cattle under this agreeperson, who agreed to advance the funds neces ment, he made an agreement with the firm of sary to carry out the contract of sale, to man Levi Baldwin & Co. No. 1 to the effect that age the cattle, dispose of them, and pay to the

the company should advance the necessary buyer half of the net proceeds. The third person retained a part of the cattle delivered by

funds to carry out his contract with Wright, the seller, but there was nothing to show that should receive and pay for the cattle deliverthey were marketable, or that they could have

ed under said contract, and would assume been sold at a profit, or that he acted in bad faith in failing to dispose of them. Il cld, that

full control and management of, and handle he was not chargeable with the cattle unsold, and care for, and dispose of, the cattle delivor liable to the buyer for a half of their value.

ered, and that, after deducting the purchase 2. REFERENCE - REPORT OF REFEREE — Evi price advanced by the company and the necDEX(E. One liable under his contract for a half of

essary expenses for the handling and caring the value of cattle in his possession is not liable

for the cattle, out of the proceeds realized for an amount estimated by a referee without from the sale thereof, the remainder of the any evidence on which to base it.

proceeds should be divided equally between 3. PARTXERSIIIP-ELEMENTS.

them; that in pursuance of this understandThe elements of a partnership are com

ing and agreement, on October 1, 1896, L. munity of loss, of title, of expenses, and com

Baldwin & Co. No. 1 entered into a written mon right to dispose of property for purposes of a partnership.

contract with the Western Union Cattle, Land [Ed. Note.-For cases in point, see Cent. Dig. & Irrigation Company for the purchase of its vol. :. l'artnership, $$ 1-14.)

herd of cattle estimated at 3.000 head, more 4. SAME-AGREEMENT CREATING RELATION.

or less, at $10.50 per head. Under and in An agreement. whereby a third person pursuance of this contract there were delivbound himself to advance funds necessary to ered to L. Baldwin & Co. No. 1, 3,416 head carry out a contract of sale, to manage the property, dispose of the same, and pay to the of cattle, for which they paid $33,883.50. In buyer a half of the net proceeds, does not create : Jarch, 1897, L. Baldwiu & Co. No. 1 entered

into a written contract with Simpson & Bour wrongful conductor willful neglect on the bonia for the purchase of 610 head of cattle, part of the defendant in selling or failing to 116 head of which were known as the "Hank sell the cattle received under the contracts. Bignell Cattle," which were delivered to L. The allegations of the complaint are, in subBaldwin & Co., and for which they paid stance: That a large per cent. of the cattle $9,941. The plaintiff claims, and the court and calves delivered under the contracts had below found, that these cattle were purchased been sold at a large profit, and all of them under the same agreement between Gause and could have been sold at and proximate to the company as the Anchor X cattle, and the time of said delivery for prices that were to be handled upon the same terms, and would have netted large and substantial profthat he (Gause) was to receive one-half of the it; that L. Baldwin & Co. No. 1 failed and net profits derived therefrom. The referee neglected and refused to dispose of all of finds that from the proceeds derived from the

said cattle, but took possession of a large cattle sold, after deducting the purchase remnant of cattle and turned the same out. price and expenses, there remained in the upon the ranges, and, although for a long bands of L. Baldwin & Co. No. 1 at the time

time subsequent to the delivery of such remof the beginning of this suit a net profit of

nant the prices were such that all of said $11,786.73; that Gause was entitled to one

cattle and offspring therefrom could have half of this amount, less $2,900 theretofore

been disposed of at a fair and reasonable net paid him, being a balance of $2,993.36.

profit, L. Baldwin & Co. No. 1, though imThe referee further finds that there remain

portuned to do so, refused and neglected to ed unsold and in the possession of L. Bald- dispose of the same, and such said remnant win & Co. No. 1 at the time of the commence

remained in the possession of that company, ment of this suit 1,047 head of cattle, in re

or its successor, L. Baldwin & Co. No. 2. gard to which he makes the following find

These a verments were put in issue by the aning: “There is nothing in the evidence to

swer, and we find no evidence as to whether show what is the value of these cattle, taken

these cattle were marketable, or could have as a herd. Baldwin & Co., during 1900,

been sold at a profit, or any evidence tending marketed cattle at the sum of $18.55 per

to show any bad faith or willful misconduct head, but these were evidently marketable

on the part of the defendants in failing to cattle. As to what herds of cattle were

dispose of the cattle remaining on hand at worth per head there is nothing to show.

the time of the commencement of this suit. There is the testimony of Mr. Logan that in

In these circumstances, we do not think the

On 1899 calves were worth $11 per head.

defendants are chargeable with the cattle this basis I estimate that the cattle as a herd

unsold, or liable to plaintiff for one-half of were worth $17 per head. This, then, would

their value, even if such value was ascertainfix the value of the cattle at the time this

ed upon competent testimony; and they cersuit was brought at $17,799." And he finds

tainly cannot be held for an amount estimatthat there was due Gause from the defend

ed by the referee without any evidence upon ants one-half the value of these cattle, to

which to base such estimate. wit, $8,899.50, which, together with the bal

Notwithstanding the judgment must be reance above mentioned, made a total indebted

versed, and the cause remanded for the rea

sons above given, we feel it incumbent upon ness of Baldwin & Co. to Gause of $11.892.86. The court below approved the referee's report

us, in view of another trial, to determine the and rendered judgment against L. Baldwin &

further question as to the relationship of the (0., Levi Baldwin, Lee Baldwin, Fred Bald- | parties under the agreement set forth in the win, and Anna Baldwin for this amount and complaint and relied on by plaintiff. Counsel

for appellee contend, and the court below costs.

found, that a partnership existed between (). G. Hess, Robert C. McManus, and Alva

Gause and L. Baldwin & Co. No. 1 in relaB. Adams, for appellants. Crane & Patrick.

tion to the transaction under consideration, for appellee.

while counsel for appellants insist that the

terms of that agreement do not create that GODDARD), J. (after stating the facts as relationship between the parties, but lacks above. Among the numerous errors assign many of the essential elements of a partnered, appellants challenge the correctness of ship, viz., "Community of loss, community of this judgment upon the ground that it is not title, community of expenses, and common in accordance with the allegations of the

right to dispose of the property for purposes complaint, or justified by the evidence in of a partnership.” Beckwith v. Talbot, 2 troduced. By the express terms of the con Colo. 6399. In Lee v. Cravens, 9 Colo. App. tract alleged, and as testified by Mr. Gause, 272, 288, 48 Pac. 159, 164, it is said: "An. L. Baldwin & Co. No. 1 was to receive, pay other incident of a partnership is the sharing for, handle, care for, and sell the cattle, and, of losses by the partners. The partnership after deducting from the amount realized contract may say nothing about losses, but from their sale the purchase price and the the right to participate in profits implies a amount expended for their care and manage corresponding liability for losses; and it has ment, pay to Gause one-half of the remaining accordingly been held that an agreement for net Proceeds. There is no arerment of the division of profits is admissible in evi.

dence as tending to show a partnership. degree to prove her cause of action or corrobWhere, however, an agreement between two orate her testimony, but contradicted her in

every important particular, she was not injured or more persons, in relation to the prosecu

by their exclusion, tion of an enterprise, provides that one of

[Ed. Note.-For cases in point, see Cent. Dig. their number shall incur no risk, and be vol. 3, Appeal and Error, $ +152.] chargeable with no loss, the agreement is

Error to District Court, City and County not one of partnership)." l'niler the contract

of Denver; F. T. Johnsou, Judye. with the Western l'nion Cattle, Land & Ir

Action by Julia Park against William S. rigation Company and the contract with

Park and oihers. From a judgment in favor Simpson & Bourbonia, the title to the cattle

of defendants, plaintiff brings error. Afpurchased and their increase vested in L.

firmed. Baldwin & Co. No. 1. They had the care, managen:ent, and the sole power to dispose

Geo. W. Taylor and W. T. Rogers, for of them. There was no community of loss

plaintiff in error. M. J. Bartley, for defendbetween Gause and the company. If the cat

ants in error. tle had clieil after the purchase by the com

CAMPBELL, J. This is an action by Julia pany, or the venture had proven a failure for

Park, wife of Charles H. Park, to recover any other reason, the whole loss would have

damages against defendants, the two sisters failen upon the company, and Gause would not have been answerable to the company

and the son of Charles H. Park, for alienatfor any part of the loss it may have suffered

ing her husband's affections, harboring him, thereby. As we construe the agreement be

and causing him to abandon and desert her. tween Gause and L. Baldwin & Co. No. 1, it

The material allegations of the complaint did not constitute a partnership between

were denied, and upon trial to the jury, after them, but is evidence of the fact that Gause

both parties had introduced their evidence, turned over to L. Baldwin & Co. his agree

the court, upon motion of defendants, directment with Wright for the purchase of the

ed the jury to find a verdict in their favor.

From that judgment plaintiff sued out this Anchor X cattle and all his rights thereun

writ of error. der, in consideration that the company should assume all responsibility of the purchase,

The errors assigned concern the legal suffi

ciency of, and the rulings of the court upon, care, and disposition of the cattle, and ac

the evidence. It is doubtful if plaintiff has count for, and pay to him, one-half of what

conformed to the practice governing reviews ever net profit should be realized from the transaction when consummated. Under this

in this court, so as to entitle her to be heard contract, a right of action would exist when

upon the matters argued in her counsel's all the cattle purchased by L. Baldwin &

brief; but we shall disregard defendants'

motion to dismiss for such failure, and disCo. Yo. 1 in pursuance of it had been, or by the exercise of reasonable diligence might

pose of this writ on its merits.

Counsel for plaintiff says that a defendant have been, sold, or when it is shown that, by

who moves for a verdict admits, for the reason of the fraud or willful misconduct on

purpose of the motion, that the evidence rethe part of the defendant companies, any of

ceived in behalf of plaintiff is true; and, if them remain unsold.

it is legally sufficient to support a verdict, The judgment is reversed, and the cause

the motion cannot be granted, citing Schwenremanded.

ke v. Union Depot Co., 12 Colo. 311, 315, 21 Reversed.

Pac. 43, and Denver Tramway Co. v. Owens, STEELE, C. J., and BAILEY, J., concur.

20 Colo. 107, 119, 36 Pac. S18. Counsel also

says that any defects in plaintiff's proofs, it (10 Colo. 354)

aided or cured by the defendants' own eviPARK V. PARK et al.

dence, cannot be taken advantage of by the

latter upon this review. He therefore says (Supreme Court of Colorado. July 1, 1907. Rehearing Denied Oct. 7, 1907.)

that, unless the court, upon all the evidence

produced, would have set aside a verdict had 1. HUSBAND AND WIFE-ALIEXATION OF AF. FECTIOX-EVIDENCE.

one been returned in plaintiff's favor, this In an action by a wife for alienation of judgment must be reversed. For our present affection of her husband, evidence held insuffi purpose, let such contention be granted. We cient to justify a recovery.

proceed. first, to examine the evidence to see 2. W'RIT OF ERROR-ADMISSION OF EVIDENCE

if it is legally sufficient to prove plaintiff's REVIEW.

Where both parties assumed that certain cause of action. The following material facts declarations of plaintiff's husband made to her are not in serious controversy: All the parduring the marriage were inadmissible, without

ties lived in Pennsylvania, when we first the husband's consent, and on his refusal to consent no attempt was thereafter made to prove

hear of them. In October, 1879, the plaintiff such declarations, the admissibility thereof with and Charles Il. Park were marriell. The: ont such consent was not reviewable by writ first wife of (harles had then been lead! of error.

about eight years. During the time between [Ed. Xote.-For cases in point, ste Cent. Dig. vol. 2. Appeal and Error, $ 1000.]

the two marriages, Elizabeth, the sister of

Charles, kept house for him, and his son Wil3. SAVE PREJUDICE.

Wher certain letters, offered by plaintiffliam, il boy 14 years old at the time of the and excluded, contained nothing tending in any second marriage, lived with the family, and

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