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do, to be by them held subject to the order | after its execution, and counsel for the apand demand of the Treasurer, as the pub- pellants lay great stress upon the position lic welfare and requirements demand; and that sureties are the favorites of the law, whereas, large sums of money have accumu- and their obligation is strictissimi juris. lated in the state treasury which have been This is unquestionably true, but, as well said so deposited and which may continue to so in a leading case upon that subject, that of accumulate beyond the demands to be made Ulster County Savings Institution v. Young, thereon during the term of office of the said 161 N. Y. 23, 55 N. E. 483: “The liability of George W. Kephart, from which the people a surety is measured by his agreement, and of the state are deriving no revenue or ben- is not to be extended by construction. His efit and which, for safe-keeping should be i contract, however, is to be interpreted by the deposited in the name of the Treasurer in same rules which are applicable to the condivers banks aforesaid; whereas, the said struction of other contracts. The extent of George W. Kephart, Treasurer as aforesaid, his obligation must be determined from the has determined and will deposit certain of language employed, when read in the light of the monies of the state of Colorado, for safe- the circumstances surrounding the transackeeping, with and in the Bank of Montrose, tion. Hence, where the question is as to the of Montrose. The amount thereof shall be interpretation and meaning of the language subject to withdrawal or diminution by the by which a party has bound himself, there said George W. Kephart, as the requirements is no difference between the contract of a of his office shall demand and which amount surety and that of a principal or other party may be increased or decreased as the said sustaining a different relation. It is when George W. Kephart may determine; and the intention of the parties has been thus aswhereas, the said bank, in consideration of certained that the principle of strictissimi juthe said deposits, has agreed to and will pay ris applies, and then it is that the courts the said George W. Kephart, for the use and guard the rights of the surety and protect benefit of the state of Colorado, the sum of him against a liability which is not strictly four per cent. per annum on account of said within the terms of his contract.” deposit, the same to be quarterly upon the [1] As we understand it, the rule that a daily average of the sum of such amount as contract of surety is strictissimi juris is not the said bank shall have on deposit to the a rule of construction, but a rule of applicacredit of said George W. Kephart, for the tion of the contract after its meaning has quarter or any fraction thereof next preced- been ascertained, but that in ascertaining its ing the payment of said per centum, which meaning it is subject to the same tests as shall be computed and credited to the ac- those applicable to any other written instrucount of said George W. Kephart, Treasurer, ment. People, etc., v. Beach, Sheriff et al., as a part of the said state funds, and the 113 Pac. 513; Sather Banking Co. v. Briggs said George W. Kephart to be at once noti- Co., 138 Cal. 724, 72 Pac, 352; U. S. Fidelity fied of said credit and the amount thereof: & Guaranty Co. v. Board of Com’rs, 145 Fed. Now, therefore, if the said Bank of Mont- 144, 76 C. C. A. 114; vol. 27 Am, & Eng. Enc. rose, of Montrose, shall well and truly keep of Law, p. 450. After a careful review of the all said sums of money so deposited, or to be opinion of the Court of Appeals, supra, we deposited, as aforesaid, subject to the check are of opinion that their conclusion in this and order of said George W. Kephart, Treas- respect was correct and should be affirmed. urer, as aforesaid, and shall pay over the In addition to the cases therein cited, we same and each and every part thereof, to think that the reasons given concerning the the said Treasurer upon his written demand injunction bond in the case of Meyers v. therefor, and shall estimate, calculate and Block, 120 U. S. 206, 7 Sup. Ct. 525, 30 L. pay said per centum as aforesaid and shall, Ed. 612, sustain the reasoning of Judge in the event said money or any part thereof Thomson in his construction of the bond

emain in its custody after the expiration of here, and are specially applicable in that rethe term of office of said George W. Kephart, spect. pay over such sum or sums to his successor In addition to what Judge Thomson bas in office, as shall be by him demanded and said, it could also be urged that the construcshall in all respects save and keep him, the tion for which counsel contend would render said George W. Kephart and his sureties to the bond ineffective and make its execution a the state of Colorado, harmless and indem- useless ceremony at the time it was entered nified for and by reason of the making of into by the obligors and accepted by the apsaid deposit or deposits, then this obligation pellee, as well as ever since, for the reason to be void, and of no effect, otherwise to be that no future deposits were intended to be and remain in full force and virtue.”

made at the time of its execution, and none [2] The first material assignment urged is have ever been made; hence an indemnity that the money sued for was not the money against losses which did not exist, or could the bond was given to secure. The conten- not have occurred up to the time of the tion is that by the terms of the instrument bank's failure, was neither useful nor dethe bondsmen assumed liability only for mon- sired. That construction which sustains and ey which should be deposited in the bank vitalizes an agreement should be preferred to that which strikes down and paralyzes it. , he does not. If he does not, then there is no Such a construction should be placed upon a enforceable agreement, for there is no concontract as will prevent its failure, and will sideration; and, if he does receive the congive effect to the obligation of each of the sideration, how can it afterward fail? It parties appearing upon it at the moment the may become less valuable or of no value at contract itself takes effect.

all, but that does not affect the agreement. The second material question presented Failure of consideration is in fact simply pertains to a failure of consideration. It is want of consideration. Nevertheless it is earnestly urged, by accepting the ruling of laid down in a number of cases that when the Court of Appeals, that the promise to de- the consideration for a promise wholly fails posit funds in the future constituted a sufil- the promise is without consideration and uncient consideration for the execution of the enforceable. But this must mean that, in a bond. The answer sets up a failure of con- contract with an executory consideration, the sideration in the fulfillment of this promise, execution of the consideration is a condition and the proofs establish that no future de- precedent to the liability on the promise, and posits were made. In this respect it will the failure to execute the consideration disbe noted that the ruling of the Court of Ap-charges the promisor." peals was based upon the pleadings as they But counsel urge that while the above is then existed, and the opinion of that court usually recognized as the law, and while they was to the effect that the complaint showed concede that such promise on the part of that the money was on deposit in the name the Treasurer, if performed, does furnish sufof Kephart at the time of the execution of the ficient consideration for the agreement on bond. The entire pleadings now before us, the part of the sureties to guarantee the pay. and the evidence, sustain the facts as first ment of either a past or future indebtedness above stated, pertaining to which it might be from the bank, or both, yet they do not conconsistently urged that the depositing of the cede that the mere naked promise of the money by the Treasurer, Kephart, or his re- Treasurer, regardless of its performance, is depositing of the same in his own name by a sufficient consideration to uphold the bond, surrendering the Mulnix certificates and tak- but contend that the failure of the Treasuring new ones in his own name in lieu thereof, er to perform his agreement to make future and the execution of the bond to secure him deposits is a good defense to an action on therefor, were all a part of one and the same the bond. They claim that in several cases transaction, and to all intents and purposes in this court and the Court of Appeals it were done simultaneously as one act, and has been held that a mere naked promise, thereby that there was a deposit of funds in without its fulfillment, is not a sufficient conthe future or at the time of the execution of sideration to enforce the obligation of the the bond, as contemplated by its terms. Sy instruments, and that this rule is applicable pert v. Harrison, etc., 88 Ky. 461, 11 S. W. here. 435. But it is unnecessary to make any rul- It will be unnecessary to pass upon this ing upon this question so earnestly urged question, for the reason that, assuming for upon oral argument by counsel for appellee the purpose of the case that counsel's posifor the reason that, accepting the position of tion is correct, and that it is necessary to the appellant as correct, and assuming, for show that the promise had been complied the purpose of the case, that this money was with, or rather that it had not been violated, on deposit at the time of the execution of the it will be noted that thre bond did not provide bond, and that there was no money deposited when such funds were to be deposited in the by the Treasurer after its execution, it does future, nor the amount of such deposits. not follow that there was a failure of the Had the bondsmen desired to be advised of consideration.

these matters in advance, they should have [3] In this connection the first question made inquiry as to what the agreement was which presents itself is, What was the con- on that subject, or had it inse ed in the sideration for the execution of the bond? bond as to when future deposits were to be The Court of Appeals held that it was the made, and the amount thereof; not having promise in the bond to make deposits in the done so, and the matter being made an issue future, so that if the promise was the con- by them, and these matters not having been sideration the promise was given in the bond, covered in the bond, it was necessary and and hence it did not and could not have proper to resort to other evidence, in order failed. It is admitted by counsel that many to ascertain what the contract was in this rerespectable authorities hold that there can spect between the Treasurer and the bank; be no such thing as a failure of considera- when this was done we find the undisputed tion.

evidence to be that it was agreed by the In volume 9, Cyc., at page 369, upon the Treasurer and Mr. McClure, upon behalf of question of failure of consideration, it is said: the bank, that at any time after any of the "Strictly speaking, as has been well pointed $15,000 then in the bank should have been out, there can be no such thing as a failure of withdrawn the Treasurer would, as soon as consideration. The promisor either receives the state funds permitted, deposit additional the consideration he has bargained for, or money in this bank, which, with that left on deposit with it, would equal the sum of $15,- der Mills' Ann. St. § 2387, is not affected by 000; that the intention and agreement was, excessive payments to him by the other counat all times, as far as possible, to keep the ties: provision for repayment of the excessive

payments having been made. sum of $15,000 on deposit in the bank, to be

[Ed. Note. For other cases, see Waters and secured by a bond, which it was then agreed Water Courses, Dec. Dig. $ 227.*] was to be furnished by the bank. This evi- 4. COUNTIES ($ 207*)-COUNTY COMMISSIONERS dence in no way contlicts with the conditions -ILLEGAL PAYMENTS-RECOVERY. of the bond, did not in any manner violate

The board of county commissioners being

merely the county's agents, any illegal payments its terms, and was competent for the purposes by it can be recovered; the defense of volunoffered. Bonney v. Robertson et al., 6 Colo. tary payment not being sustainable. App. 485, 41 Pac. 842.

(Ed. Note.--For other cases, see Counties, The record further shows that the bond Cent. Dig. $$ 324, 335, 336; Déc. Dig. $ 207.* í bears date January 18th; that the bank be- Appeal from District Court, Clear Creek came insolvent upon September 28th of the County; Flor Ashbaugh, Judge. same year; that during this period all of Action by John W. McLean against the the $15,000 was on deposit, and the record Board of County Commissioners of Clear does not show that any demand, request, or Creek County. Judgment for plaintiff, and claim had been made for other deposits, un- defendant appeals. Afirmed. der the provisions of the bond, the contract

E. M. Sabin, for appellant. William A. upon the subject, or otherwise. Under these

Dier, for appellee. circumstances, if the promise in the bond to make future deposits was the sole legal con

HILL, J. Appellee sued the appellant to sideration running to the bank for its exe

recover an amount alleged to be due from cution, when considered in the light of the it to him as its pro rata share for services surrounding circumstances at the time the performed by him as water commissioner of contract was entered into, we cannot say water district No. 9. The appellant denied that there had been a failure of considera- that its county of Clear Creek, or any part tion or refusal to comply with the terms of thereof, was embraced in said water district, the bond up to the time the bank failed.

and alleged that there are no lands in said The trial being to the court, we find no county irrigated from Bear creek or any of prejudicial error in the admission or rejec- its tributaries. It denied that the appellee tion of evidence. For the reasons stated, was the water commissioner in said district the judgment is allirmed.

No. 9 and denied that payment had not been Affirmed.

made for such services. Trial was to the

court. Judgment was for the plaintiff in the CAMPBELL, C. J., and GABBERT, J.,

sum of $1,138.33, from which this appeal is concur.


The statutory provisions applicable to the (50 Colo. 602)

controversy are as follows: BOARD OF COM'RS OF CLEAR CREEK "That district No. nine shall consist of all COUNTY v. MCLEAN.

lands irrigated by ditches taking water from (Supreme Court of Colorado. May 1, 1911.)

Bear creek and its tributaries." Mills' Ann. 1. WATERS AND WATER COURSES ($ 226*)— St. & 2319. WATER DISTRICTS-LOCATION-EVIDENCE. "The water commissioners shall be enti. Evidence, in an action against a county for tled to pay

and be paid by the services as water commissioner of a district, held to show that the district was partly located county or counties in which his irrigating within the county.

district may lie.

Each board of (Ed. Note.-For other cases, see Waters and county commissioners shall pay its pro rata Water Courses, Dec. Dig. § 226.*]

share thereof." Mills' Ann. St. § 2387. 2. WATERS AND WATER COURSES ($ 227*)— [1] It will be seen that, in the section cre

WATER DISTRICTS — COMMISSIONERS Como ating water district No. 9, Clear Creek coun-
Under Mills' Ann. St. $_2387, entitling, a

ty is not mentioned by name; hence, whethwater commissioner to pay 'from the counties er it or any part thereof was embraced in in which his district lies, one of three counties said district No. 9 was a question of fact to in which a district lies is liable for one-third of be determined upon the evidence, which dishis compensation, though no services have been rendered in that county, though decreed priori-closes that Bear creek extended into and ran ties have not yet been established for ditches through a part of the counties of Clear therein, and though there is less land irrigated Creek, Jefferson, and Arapahoe; that the in the county than in either of the other two lands irrigated from Bear creek and its tribcounties.

{Ed. Note.-For other cases, see Waters and utaries are situated in these three counties Water Courses, Dec. Dig. § 227.*]

and none other; that in Clear Creek county 3. WATERS AND WATER COURSES ($ 227*)-WA- there were some eight or nine small ditches

TER DISTRICTS-COMMISSIONERS-COMPENSA- which took water from Bear creek for the
A water commissioner's right to recover

purposes of irrigation; that about 150 acres one-third of his compensation against one of of land in Clear Creek county was irrigated the three counties in which his district lies, un- by the waters from this stream through these •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes


ditches; that approximately 3,000 acres of it is excessive for the reason that during a land were irrigated from the same stream part of the time these services were being and its tributaries in Jefferson county and rendered Jefferson county paid appellee for about 1,000 acres in Arapahoe county. It one-half of them, and that Arapahoe county, was admitted that the services for which for a time, paid to him one-half of a certain payment was claimed had been rendered by amount thereof. It further appears that durthe appellee while acting in the capacity of ing this time Jefferson county withheld the water commissioner for this district, but entire salary of the appellee until the sum so that none of them had been performed in withheld equaled the overpayment, and thereClear Creek county, and that no request had after paid one-third only of the appellee's been made to him by the county commission- salary, and that, while Arapahoe county did ers of that county or by any one else in that not withhold money from the appellee to recounty for the performance of any services coup itself for the overpayment, it had an by him as such water commissioner to be agreement with him to repay to it the sum performed in Clear Creek county. It was overpaid; hence the contention that the further admitted that no adjudication had judgment is excessive rests on the basis that ever been bad to establish the priority of Clear Creek county is entitled to credit on rights for the ditches taking water from the sum it owes the appellee upon account of Bear creek in Clear Creek county.

the sums that Jefferson and Arapahoe coun[2] Under this state of the record we think ties had overpaid him, although it further the trial court correct in holding that Clear appears that Jefferson withheld an amount Creek county was liable for its pro rata (one sufficient to cover its overpayment, and that third) of the services rendered by the water Arapahoe county had an agreement with commissioner in water district No. 9. him to be reimbursed. This third contention

The fact that none of the services perform- is not well taken. The board of county ed were rendered in the county of Clear commissioners is but the agent of the county, Creek is no defense to the action, and is and any illegal payment by it in violation of fully answered in the case of Board of Coun law can be recovered from the recipient, and ty Commissioners of Park County v. Locke, the defense of voluntary payment cannot be 2 Colo. App. 508, 31 Pac. 351.

sustained; such a payment by a county is The fact that decreed priorities had not a well-recognized exception to the rule at. yet been established for these ditches is like- tempted to be invoked by the appellant in wise no defense to this action. This question this case. Roberts v. People, 9 Colo. 458, 13 was thoroughly considered in the case of Pac. 630; Ward 1. Town of Barnum, 10 Chew v. Board of County Commissioners of Colo. App. 496, 32 Pac. 412; Cumberland Fremont County, 18 Colo. App. 162, 70 Pac. County v. Edwards, 76 Ill. 544. 764. Also, the fact that there is less land For the reasons stated, the judgment is irrigated in the county of Clear Creek than affirmed. the other counties in the district, and for Affirmed. that reason it would be inequitable to compel the appellant county to pay its pro rata

CAMPBELL, C. J., and GABBERT, J., share of the total, constitutes no part of any concur. defense to the action. The Legislature having seen fit to provide this method of payment, it would be judicial legislation upon

(50 Colo. 610) the part of the courts to attempt to arrange

ROBBINS et al. (EWING, Intervener) v.

HOOVER et al., Board of Com'rs of it otherwise.

Boulder County. [3] The second defense urged that the ap

(Supreme Court of Colorado. May 1, 1911.) pellee was not lawfully appointed, for the reason that he was not recommended by the 1. COUNTIES ($ 47*)–COUNTY COMMISSIONERS county commissioners of Clear Creek county,


County commissioners are constitutional and that they took no part concerning his officers, made so by Const. art. 14, § 6, possessofficial bond, is not properly here for deter- ing only such powers as are expressly conferred mination. The record discloses that he had on them acting as a board either by Constitubeen appointed, furnished his official bond, powers as are reasonably necessary to the prop

tion or statutes, and, in addition, such iinplied and was performing the duties of the office. er execution of those expressly conferred. Chapter 27 of the Code provides the method [Ed. Note.-For other cases, see Counties, of procedure by which the title to an office Cent. Dig. $ 55; Dec. Dig. $ 47.*1 can be tried. It cannot be thus inquired into 2. COUNTIES ($ 113*)-COUNTY COMMISSIONERS in a collateral proceeding. Henderson v.


SUPPORT A HOSPITAL. Glynn, 2 Colo. App. 303, 30 Pac. 265; Pueblo

County commissioners are not given power County v. Gould, 6 Colo. App. 44, 39 Pac. by Rev. St. 1908. $ 1204, prescribing their au895; Montezuma County v. Wheeler, 39 Colo. thority, nor by any other act, to make a bind207, 89 Pac. 50.

ing engagement conclusive on their successors to

forever support and maintain a hospital. [4] The third contention pertains to the

[Ed. Note.-For other cases, see Counties. amount of the judgment. It is alleged that I Cent. Dig. $ 175; Dec. Dig. § 113.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

3. CHARITIES (§ 4*) - CONSTRUCTION - CONDI- against them, and they bring error. TIONAL BEQUEST-VALIDITY.

versed and remanded.

Testator bequeathed to and for a hospital building and home to be built in B. county for the support of poor widows and orphan children, while sick and unable to care for themselves, $50.000, provided the city, by its officers, or the county commissioners and their successors in office would support and maintain the same. Held, that it was a condition precedent to the county's right to such bequest that the commissioners agree to support and maintain the hospital, and, the commissioners having no power to comply with such condition, the bequest was void.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 43; Dec. Dig. § 23.*]

[Ed. Note.-For other cases, see Charities, widows and orphan children, while sick and Cent. Dig. §7; Dec. Dig. § 4.*] unable to care for themselves, the sum of 4. CHARITIES (§ 23*)—CHARITABLE GIFT-VA- Fifty Thousand ($50,000) Dollars. Providing the City of Boulder, by its officers, or the County Commissioners and their successors in office, will support and maintain the same, otherwise the said $50,000 to revert back and the same to be divided up among the following legatees, to-wit, Lydia A. Snow, Jerome Macky, Alonzo Macky, Chaun


A testator bequeathed to and for a hospital building and home to be built in B. county, Colo., for the comfort and support of poor widows and orphan children, while sick and unable to care for themselves, $50,000, provided the city, by its officers, or the county commissioners and their successors in office would support and maintain the same, otherwise to certain legatees. Testator appointed no trustee to carry out the trust, and did not delegate such author-cy ity to the court, nor did the will contain any plan for executing the trust. Held that, though the beneficiaries were sufficiently designated, the charity was not such an one as a court of equity had jurisdiction to enforce, since the king's prerogative as parens patriæ does not belong to the equity courts of the United States in construing wills.

[blocks in formation]


T. A. McHarg, guardian ad litem. C. S.
Thomas, for plaintiffs in error.
for defendants in error.
M. M. Rinn,


Where a will, after providing legacies to certain minors, attempted to create a trust for the erection of a hospital for poor widows and orphans, and provided that, should the trust fail, the money should be divided among the legatees proportionately, the county court had no jurisdiction to require of the guardian ad litem of such minor legatees, in a suit to enforce the trust, that they sign a receipt agreeing not to contest the validity of the will as a condition to their receiving their legacies, and such a receipt did not operate as an estoppel against such minors to ask for a construction of the will different from that sought by those desiring the enforcement of the trust. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 697.*]

CAMPBELL, C. J. [3] In the last will of Andrew J. Macky, of Boulder county, is this item: "7th. I further give and bequeath to and for a hospital building and a home to be built in Boulder, County of Boulder, and State of Colorado, for the comfort of poor

Macky, Celia B. Dickerson, Anna C. Walker, Mary Aldrich, Emma Aldrich, Cora Doyle, George Robbins, Elmer Robbins, Earl Harold Robbins, Lola Robbins and Monabelle Robbins, in proportion as their legacies herein mentioned bears to the said ($50,000) Fifty Thousand Dollars." The individual plaintiffs below, defendants in error here, describing themselves in their complaint as County commissioners of Boulder county, constituting the members of the board of brought this action, and in their complaint alleged the execution and probating of Mr. Macky's will, and that the board of county commissioners of Boulder county had complied with the condition of the foregoing bequest by accepting the same for the purposes and upon the conditions therein named, and, as stated in their prayer for relief, legacy of $50,000 for the purposes set forth they asked to be appointed trustees of the in the bequest. Among the defendants the petition are the present plaintiffs in erwhom they summoned into court to answer ror, who are minors, to whom, among others, the bequest was to be divided in the event that neither the city of Boulder nor the county of Boulder should agree to support and maintain the hospital therein provided has been brought up in the record, expressfor. The trial judge in his opinion, which ed grave doubt as to the correctness of his judgment, but believing, as he did, that the testator intended to devote the sum of $50,000 to a worthy object, finally concluded that he would construe the clause in question as creating a charitable use, and there

En Banc. Error to District Court, Boul-upon appointed plaintiffs as trustees to take der County; Harry P. Gamble, Judge. Action by Moses Hoover and others, con- effect the testator's supposed intention. the legal title to the fund, and carry into stituting the Board of County Commissioners of Boulder County, against Earl Harold Rob-that this bequest is invalid because its vestThe majority of the court are of opinion bins and others; W. C. Ewing, intervening. ing is made to depend upon an impossible, Defendants demurred, and after their demur- legally unenforceable condition precedent. rers were overruled judgment was entered The proviso or condition which must be com

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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