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TELLER, C. J., and SHEAFOR, J., concur.

6104 and 6137, already quoted, which make the other against, its discharge. Its first the garnishee, if delivery is not made, lia-impression was correct. The last judgment, ble to the plaintiff at least for the amount the one on review here, is therefore reversed of the thing in action which he refuses to and the cause is remanded, with instructions deliver, for which the garnishee, had not the to the county court (as plaintiff does not writ been served upon him, otherwise would claim more) to enter judgment against the be liable to the defendant; that is, would garnishee in favor of the plaintiff for $95, have been required upon demand of the de- and for costs both here and below. fendant to deliver to him the check in ques- Reversed and remanded. tion. That there may be no misunderstanding, it is well again to state that this is not a case like that of Citizens' Bank v. First National Bank, supra, where it was sought to make a garnishee liable for the amount of a bank check in its possession before it had been presented for payment. Here the garnishee's liability, in the first instance, was to deliver the check to the constable when process of garnishment was served. Failing. to do so, and without any legal excuse, it is clearly liable under our statute for the amount of the check.

The following, among other, authorities cited sustain our conclusion: Davis v. Mitchell, 34 Cal. 81; Donohoe v. Gamble, 38 Cal. 340, 352, 99 Am. Dec. 399; Hoxie v. Bryant, 131 Cal. 85, 63 P. 153; Kratzenstein v. Lehman, 19 App. Div. 228, 46 N. Y. S. 71. In the last case the court, in speaking of promissory notes, said:

"While they are, in a technical sense, choses in action, yet practically the paper itself is property, is regarded as such, and is dealt with like other tangible personal property."

ANGLO-AMERICAN MILL CO. v. FIRST

NAT. BANK OF GLENWOOD SPRINGS et al. (No. 10931.)

Oct. 6, 1924.)

(Supreme Court of Colorado.
Appeal and error 882(5)-Where counsel

insisted that motion be treated as general
demurrer, complaint may not be made that
it was so treated.

Where plaintiff's counsel insisted that motion to strike part of complaint be treated as general demurrer, complaint may not thereafter be made that it was so treated. 2. Pleading 17-Allegation of knowledge of unrecorded lien should be made of plaintiff's own knowledge, not on information and belief.

Allegation of a defendant's knowledge of an unrecorded lien should be made on plaintiff's own knowledge, and not on information

and belief.

3. Sales 459-Presumption that conditional sale was intended is rebuttable by stipulation in notes given.

Presumption from vendor's reservation of title that sale was intended to be conditional is rebuttable by terms and stipulations of notes given.

4. Sales

459-Optional payment of price is essential to conditional sales.

Optional payment of price is as essential to conditional sales as is the conditional passing of title.

In Storm v. Cotzhausen, 38 Wis. 139, the court held that the term, "property, credits, and effects," includes commercial paper. The same was held in La Crosse National Bank v. Wilson, 74 Wis. 391, 43 N. W. 153. If that is true under the Wisconsin statute, much more is it true that commercial paper or negotiable instruments are subject to garnishment and attachment under statutes like ours, which expressly include them. as among classes of property which a garnishee must, on demand, surrender to an officer who serves upon him a garnishee summons. Nordyke v. Charlton, 108 Iowa, 414, 79 N. W. 136. In the note to Fishburn v. Londershausen, an Oregon case reported in 14 L. R. A. (N. S.) Where transaction between buyer and seller is absolute sale, written reservation of se1234, a number of cases in point are collectcret lien constitutes a "chattel mortgage," ed. A case that goes much further than is which, when unrecorded, is void as to third necessary here, in holding commercial paper subject to garnishment, is Washington Brick, etc., Co. v. Traders' National Bank, 46 Wash. 23, 89 P. 157, 123 Am. St. Rep. 912. Even

in the absence of such decisions under somewhat similar statutes, we would unhesitatingly reach the conclusion that, under our attachment and garnishment statutes, bank checks, which are a species of bills of exchange, are subject to garnishment.

The county court was in doubt as to the liability of the garnishee, as evidenced by successive judgments; one in favor of, and

5. Chattel mortgages 6, 152, 194-Written reservation of secret lien on goods apparently sold absolutely is "chattel mortgage," and void as to third persons when unrecorded.

persons.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Chattel Mortgage.]

6. Chattel mortgages 99-Secret lien reserved in unrecorded instruments accompanying sale cannot be extended to secure renewals of purchase-money notes.

Since, under Chattel Mortgage Act, proper notation on record is necessary to extend security of mortgage to renewal notes, a chattel mortgage contained in unrecorded written contracts retaining a secret lien on property

(230 P.)

sold absolutely cannot be extended to secure balance of the purchase price, $3,100 of renewal of purchase-money notes.

7. Chattel mortgages 198-Failure of vendor asserting lien to take possession after default of purchaser held to defeat priority. Failure of vendor of machinery claiming secret lien thereon to take or assert right to possession within reasonable time after default of purchaser, or until after execution sale of such property by creditor of purchaser, held to defeat whatever priority he had had.

8. Contracts 212(2)-Indebtedness, time of payment of which is not fixed, is payable on demand or within reasonable time.

Indebtedness, time of payment of which is not fixed, is payable on demand or within reasonable time.

9. Chattel mortgages 274-Chattel mortgage securing indebtedness which had no time for payment fixed must be foreclosed within reasonable time.

Where written instruments reserving secret part purchase-money lien on machinery sold fixed no time for payment, mortgage created thereby could only be foreclosed within reasonable time (fixed at 30 days by statute).

10. Sales 459-Conditional features of sale, if any, held terminated on purchaser becoming absolutely liable for price.

Where sale of machinery allowed 30 days for inspection, and where purchaser then gave unconditional notes for balance of price, held, any previous conditional feature of sale thereupon terminated, and title passed absolutely on purchaser's liability to pay becoming absolute.

Department 3.

which were paid in money at the time of the delivery of the machinery. The allegations of the complaint allege an unconditional sale; the promissory notes for the balance of the purchase price are negotiable instruments, and upon their face import an absolute obligation to pay. The accompanying writings, particularly the license contract, provided that, upon a failure of the maker to pay the notes, he was required to remove the machinery and return it to the seller, or the seller itself might enter the mill and remove the machinery. The contract also provided that the seller should have a lien upon the property as a security for the payment of the promissory notes. Neither the contract of sale nor the license contract was recorded. The notes were renewed from time to time; some by the original purchaser maker, and others by his successor in interest, the elevator company. While this machinery was in possession of the elevator company, and none of the written instruments constituting the contract between the parties being of record, the First National Bank of Glenwood Springs, a codefendant here with the elevator company, made loans of money to the elevator company aggregating about $22,000, which the company failed to pay, and suit upon its promissory notes evidencing the loans was begun by the bank, a receiver was appointed to take possession of the mill property, and final judgment was entered upon the notes, and, under execution, sale of the property was made, and the

Error to District Court, Garfield County; bank bid it in. John T. Shumate, Judge.

Action by the Anglo-American Mill Company against the First National Bank of Glenwood Springs and another. Judgment of dismissal, and plaintiff brings error. Af

firmed.

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This action was brought by the AngloAmerican Mill Company as plaintiff against the bank and the elevator company, its object being to establish as against them the priority of its secret lien upon this mill machinery, and to foreclose the lien by sale of the machinery, or otherwise, and to satisfy the same by applying the proceeds to the payment of the balance of the purchase price. The elevator company, if served with process, did not appear or defend. The de

fendant bank filed a motion to strike certain portions of the complaint, which the court treated as a general demurrer, and upon its granting of the motion, so considered, dismissed the action upon the announcement by the plaintiff that it declined to plead further, but would stand upon its complaint.

CAMPBELL, J. The Anglo-American Mill Company, a Kentucky corporation, made a contract with a Mr. Cowden, to whose rights and liabilities thereunder the Cowden Mill and Elevator Company, one of the defendants, has succeeded, whereby the mill com- [1] We have not the slightest doubt about pany agreed to, and did sell, and Cowden the correctness of the decision of the trial agreed to, and did buy of the mill company, court. The first point made by the plaincertain mill machinery, which he put into tiff in error, the seller of the machinery, is a mill erected on his premises at Silt, Colo. that it was error for the trial court to treat The transaction between the contracting the defendant mill company's motion as a parties was evidenced by several written general demurrer. A sufficient answer is that agreements, including a so-called license con- in the well-considered opinion which the tract or purchase agreement, and a number plaintiff in error brought up in the record of promissory notes executed by Cowden is found a statement by the trial judge that and delivered to the mill company for the the plaintiff's counsel themselves insisted

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that the motion should be treated as a demurrer, and, acting upon their suggestion, the court did so.

[2] The chief reliance of plaintiff in error is that the transaction between it and the purchaser of the machinery was, in legal effect, a conditional, and not an absolute, sale, and that since the complaint alleges that the defendant bank had knowledge of the true nature of the transaction, and that the parties intended the sale to be a conditional one, and that plaintiff thereunder retained title to the machinery and had a lien thereon until all the purchase price was paid, its rights, as a seller, are paramount to those acquired by the bank under the execution sale.

First we say that it is doubtful, if the allegation of the complaint is sufficient as to the alleged knowledge of the bank of the existence of the unrecorded lien. We say this because the allegation is on information and belief that the bank had actual and constructive notice. What the constructive notice was does not appear, and in such circumstances, we think, that, in the absence of any explanation of plaintiff's alleged lack of knowledge or information on the subject, the allegation in its complaint as to actual knowledge of the defendants should have been upon plaintiff's own knowledge, and not upon information and belief.

[3-5] But assuming that there is in the complaint a sufficient allegation that defendant knew of the existence of an unrecorded lien in plaintiff's favor at or before the time defendant's rights accrued, the judgment of the trial court must, nevertheless, be affirmed. This contract in all essential particulars is similar to, indeed, in legal effect, is the same as, the contracts considered by this court in Andrews v. Colo. S. Bank, 20 Colo. 313, 36 P. 902, 46 Am. St. Rep. 291; Clark v. Bright, 30 Colo. 199, 69 P. 506; Church v. Furniture Co., 15 Colo. App. 46,

60 P. 948; and Turnbull v. Cole, 70 Colo.

It

364-369, 201 P. 887, 25 A. L. R. 1149. was held in the Andrews Case, and its doctrine was followed and approved in the others, that, though an agreement itself provides that title to property shall remain in a vendor until full payment shall be made, "thus evidencing an intent to make the sale conditional so far as the transfer of the title is concerned, that such an intention is rebutted by the terms and stipulations in the notes given in pursuance of the agreement." And what is particularly applicable here,

the court further said:

"The optional payment of the purchase price is as essential to constitute a transaction a conditional sale as the conditional passing of the title; and a transaction that in express terms imposes an unconditional liability upon the vendee to pay the purchase price for the property delivered, however characterized by the parties, is essentially and in legal effect

That is quite pertinent to the facts here. Though the different writings entered into between the mill company and Cowden stipulated that title should not pass from the seller until full payment of the purchase price was made, the promissory notes given as part of the purchase price were absolute, unconditional promises to pay. No option was given to the vendee as to whether or not he should pay, but he was absolutely bound to pay, and, if he did not, he was required to return the machinery to the vendor, or the latter might itself enter the mill and remove it. This transaction between buyer and seller was an absolute sale with the reservation of a secret lien thereon by the seller, which made the written contracts a chattel mortgage under the law of this state and the decisions of this court in the Andrews and other cases. Not being recorded, they were void as to third persons whose rights attached while the property remained in the possession of the mortgagor vendee.

[6] If it be a fact that the bank had knowledge of this unrecorded mortgage, on the theory that there was an absolute sale with a mortgage back as security, the notes secured thereby were not paid at maturity or at all, and renewal notes were made from time to time. There could be no proper extension of the mortgage to secure the renewal notes, because there was no mortgage of record, and the life of a chattel mortgage, under our Chattel Mortgage Act (C. L. §§ 5083-5099), may not be prolonged by an extension, unless the proper notation thereof is made in the records of the county recorder. Even if this chattel mortgage, because the bank had knowledge of it when its rights accrued, was a paramount lien when the bank lent its money to the elevator company, such lien might be divested for a failure of the lienor properly to preserve and

enforce it.

[7] The original notes, which were secured

by the mortgage, matured before the bank

made its loan on which it later recovered

judgment and made sale of the elevator property. No attempt was made by the mortgagee thereafter or theretofore to take pos

session. If the lien was extended to cor

respond with the renewal of the notes, which, however, in this state was legally impossible, the renewal notes themselves became due before the bank's rights attached, and no possession, within a reasonable time thereafter, was taken by the plaintiff mortgagee. Indeed, possession was never taken by the mortgagee, nor was there any attempt by it to do so, nor was there any claim of such right made until after the execution sale and after the bank itself had taken possession of the property, so that the rights and equities of the bank are superior to those of the plaintiff vendor.

[8, 9] There are other reasons for the af

(280 P.)

the plaintiff contends, that the several written instruments, aside from the notes, constituted the real contract of the parties, these instruments furnish no information as to when the secured indebtedness became due, and no time was designated therein when the indebtedness was to be paid. The rule of law in such a case is that the indebtedness was payable on demand or within a reasonable time thereafter, and any mortgage, such as was created by these instruments, must be foreclosed within a reasonable time thereafter, our statute making a reasonable time 30 days.

[10] No attempt, as we have said, was made by the plaintiff to take possession. Then, too, if there was any conditional feature about this sale, it appears from all the provisions of the contract, taken together, it was only for a period of 30 days, which period of time was given by the vendor to the vendee Cowden in which to test the machinery in operation to see if it was satisfactory. This test was made, and Cowden was satisfied, and it was then that he delivered the unconditional and absolute promissory notes for the balance of the purchase price. The condition, if it ever existed, then ceased and title passed out of the plaintiff and absolutely fixed liability upon Cowden for the payment of the balance due. Waiving, as we have, all formal defects, irregularities, and fatal inconsistencies in the complaint, which are quite apparent, we are thoroughly satisfied that its allegations, read with the several agreements which are made a part of the complaint by reference, show an absolute, and not a conditional, sale; that, even if the defendant bank had actual knowledge of the existence of the several contracts that made the transaction a chattel mortgage, whatever rights or liens the plaintiff had thereunder were forfeited and lost by reason of its failure to take possession as the law required.

The judgment of the district court is therefore affirmed.

Judgment affirmed.

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3. Boundaries 37 (3)-Court held not justifled in accepting surveyor's line from corner fixed by marked trees, in view of other evidence as to location.

Court held not justified in accepting line marked trees, in view of other competent evirun by surveyor from corner fixed by two dence as to stone in place marked as corner and blazed trees on lines running therefrom on courses given in field notes. 4. Boundaries 35(3) - Testimony of one making single survey without license not incompetent; to "practice a profession."

That one making survey for his father, who was owner of property, had no license under C. L. § 4696, to practice surveying, did not render his testimony as to location of corner incompetent; "to practice a profession" being to hold one's self out as following it, as calling or one's usual business. 5. Trespass

67-Submission of question of exemplary damages for cutting timber held unauthorized.

There being fair question as to location of boundary line, and no evidence that parties sued for damages for cutting timber acted question of exemplary damages to jury was not willfully, wantonly, or recklessly, submission of authorized.

Department 3.

Error to District Court, Clear Creek County; S. W. Johnson, Judge.

Action by Clara Stevens against the Beaver Brook Resort Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

Guy D. Duncan, of Denver, for plaintiffs in error.

Charles R. Bosworth and S. S. Abbott, both of Denver, for defendant in error.

TELLER, C. J. The parties to this litigation were owners of adjoining tracts of timThe de

TELLER, C. J., and SHEAFOR, J., con- ber land in Clear Creek county.

cur.

BEAVER BROOK RESORT CO. et al. v.
STEVENS. (No. 10789.)

(Supreme Court of Colorado. July 7, 1924.
Rehearing Denied Nov. 10, 1924.)

1. Boundaries 54 (2)-Method of establishing lost corner stated.

To establish lost corner, surveyor should locate, if possible, government corners in every direction from it, and apportion distance between such points.

fendant in error owned the north half of the northwest quarter of section 21, and the northeast quarter of the northeast quarter of section 20, all in township 4 south, range 72 west.

Plaintiff in error, the Beaver Brook Company, owned lands immediately south of this row of 40's. Defendant in error had judgment in an action against the plaintiffs in error for damages alleged to have resulted from the cutting of timber on her property. The verdict was for $650, which included $150 exemplary damages. Judgment was entered on the verdict.

The question on which the right to damFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In Morse v. Breen, 66 Colo. 398, 182 P. 887, we said:

ages turned was as to the south line of plain- | properly marked, was not in place and so tiff's property, which was, of course, the located as to make it controlling as against north line of defendants' property. One of the reference to the brook. the errors assigned, is the giving of instruction No. 2, by which the jury was informed that the line between the lands of the plaintiff and defendants, as established by the survey of one Barbour, is the true boundary line of the lands, and it was to be so considered.

It does not appear from the record that any undisputed monuments of the original government survey were found. It is conceded that the northwest corner of section 21 was a point material to be established, from which the south line of plaintiff's property could be located. Barbour, who made the survey adopted by the court, testified that at the point which he established, and which the court accepted as that corner, he found no monument; but two trees, one standing and one down, one marked "16" and the other "17," were accepted by him as witness trees. He testified further that he found on the ground, something less than a mile east of this corner, a stone which he took to indicate the northeast corner of the section. He further testified that he found the west quarter corner of 21, the southeast corner, and the east quarter corner. None of these stones taken by Barbour as monuments appears by his testimony to have been in place. He testified that he did not go west of the point selected as the northwest corner of 21, or north of it, nor did he go south of it beyond the quarter corner.

"Stones are liable to removal, and hence they are not as good evidence of the lines run as are physical objects used as monuments, or located on plats, such as streams, etc., which are permanent in their location."

Barbour seems to have been satisfied with finding what he called the two bearing trees as fixing the location of the northwest corner of 21.

[3] Moreover, the court was not justified in accepting the Barbour line, in view of the fact that there was other competent evidence, which the jury might well have considered, showing that the northwest corner of 21 was a considerable distance to the west, and to the north, of the place where Barbour placed it. The testimony is that at that point there was a stone in place bearing the markings to show that it was the northwest corner of 21. The testimony as to this location of the corner was supported by testimony that there were blazed trees on lines running from it on the courses given in the field notes.

[4] The court withdrew from the jury the testimony of one Furlong, who testified to a survey by him which carried the north line of 21 north, and the west line west, of where Barbour placed them. He found the corner above mentioned. The court held that inasmuch as Furlong was not a licensed surveyor [1] The method of restoring lost corners is he could not testify. The statute, which indicated in Westcott v. Craig, 60 Colo. 42, doubtless the court had in mind, is 4696 C. 151 P. 934. The rule is one of apportion-L. 1921, which makes it unlawful for any ment; under it, to establish a lost corner, the surveyor should locate, if possible, government corners east of it, west of it, north of it, and south of it, and then by apportioning the distance as found to be between these points, the true corner will be established.

[2] We regard the evidence of Barbour as wholly insufficient to justify the court in holding that the south line of the plaintiff's property as located by him was correct, even if there were no evidence to the contrary. The line as located by Barbour and accepted by the court was admittedly several hundred feet farther to the south than it would be under the field notes which were in evidence. The notes give Beaver Brook's location, with reference to the southwest corner of the section, at the point where it crosses the west line, and if that point be as stated in the notes, the south line of plaintiff's property has been carried by Barbour much too far to the south. Barbour testified that he did not regard physical features mentioned in the notes as material, where government corners contradicted the notes. In this he was probably correct, but as applied to this case

person

"to practice or offer to practice engineering or land surveying in this state, unless such person has been duly licensed under the provisions of

this act."

That statute has no application to this

case.

The testimony of Furlong was that he had engaged in land surveying in Minnesota, that he, at the time of this survey, was a clerk in the post office, and that he made the survey for his father, who was one of the owners of the property. Such a survey is not practicing surveying. To practice a profession is to hold one's self out as following that profession as a calling, as one's usual business. People v. Blue Mountain Joe, 129 Ill. 370, 21 N. E. 923; Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575. In the latter case it is held that one who acts as a broker in the selling of a single piece of property, not being engaged regularly in the business, does not require a broker's license. The court excluded the plat made by Furlong because he was not a licensed surveyor.

[5] There are other instructions of the

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