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so intended by the parties, and, therefore, it , acquired rights thereunder. In Jones v. Higmight sue upon it; the defendant insisting gins, 80 Ky. 409, the court said that the parthat the bond was given primarily and di- ties to such an instrument had the undoubted rectly for the benefit of the school board, and, right to change or abandon the contract bewhile its performance may have incidentally fore its acceptance by the third party for been of benefit to the plaintiff, such was not whose benefit it was made. In Trimble v. its primary object according to the intention Strother, 25 Ohio St. 378, the court held that of the parties. The rule in this state, as laid where the intention is to benefit a third party down in Lehow V. Simonton, 3 Colo. 316, by a contract, “if he has not been induced to Green v. Richardson, 4 Colo. 581, and Green alter his position by relying in good faith on v. Morrison, 5 Colo. 18, is that a third party, the promise made in his favor," the promisor for whose benefit a simple contract has been thereunder is not estopped from setting up entered into for a valuable consideration mov- against the beneficiary any defense which he ing from the promisee, may maintain an ac- could have set up against the enforcement of tion upon it in his own name. The author- the promise by the other contracting party. ities are not entirely in accord as to whether Davis v. Calloway, 30 Ind. 112, 95 Am. Dec. a bond like this is made for the benefit of 671, held that, until acceptance by the party third parties, in the sense that they might intended to be benefited, the parties to the maintain an action upon it. We are, however, contract might rescind it. See, also, Jefferunder the facts of this case, relieved of the son v. Asch, 53 Minn. 16, 55 N. W. 604, 39 necessity of determining this important ques- Am. St. Rep. 618, 25 L. R. A. 237 (notes 10, tion. We are bound to assume the fact to 11, 12, 13, pp. 265, 266, of 25 L. R. A.). be, as defendant asserts, that the plaintiff did In the case at bar, not only is there no not rely upon this bond in furnishing the evidence that the plaintiff relied upon this brick to Smith, that it did not know of its bond or accepted it, or in good faith acted as existence until it brought this action, and

he did because it was given, but we know that it never accepted the same while the from the records of this court (Keefe Mfg. bond was binding between the parties there- & Inv. Co. v. School District, 33 Colo. 513, to. It is also true that, while we have ap.

81 Pac. 237) that it unsuccessfully tried to get proved of the acts of public corporations in a judgment against the school district for thus attempting to protect those who do

the balance which Smith owed to plaintiff work upon and furnish materials for a pub- under this contract. Our conclusion in this lic building (Denver v. Hindry [Colo. Sup.] case, however, is not based upon this attempt 90 Pac. 1028), yet they are not under any le

by plaintiff to secure his claim from the gal obligation so to do. Neither is there a district. Applying the principle of the foreclaim here that the board was under any le

going authorities to this case, we say that, gal liability to plaintiff when this bond was

if the bond on which the defendant was sureexecuted.

ty was given for plaintiff's benefit, the plainThe general rule seems to be that, under

tiff, in acquiring rights thereunder, assumed such a state of facts, a third person for its burdens and restrictions. This bond exwhose benefit a contract has been made can

pressly provided that it should be annulled not maintain an action upon it if, before he

upon the acceptance of the building by the accepts the same, the parties thereto have re

school board. The board was not legally or scinded, annulled, or canceled it. 9 Cyc. 386,

equitably liable to plaintiff for this or any and authorities cited. A leading case is Gil

other claim. In good faith it accepted the bert v. Sanderson, 56 Iowa, 319, 9 N. W. 293, building before the plaintiff knew of the ex41 Am. Rep. 103. Seerers, J., after observ

istence of the bond, or made any claim thereing that under the contract there before the

under, or relied upon it. Thereby the bond court the plaintiff may have been entitled to

became functus officio as to the obligee. its benefits, said: “Now, before he had knowl- Plaintiff, not having then in any way indicatedge any such contract was in existence, the

ed its acceptance of the bond, could not

thereafter enforce it. parties who made it agreed upon a valuable consideration to release the obligation thereby

The judgment of the county court in favor assumed. Having the power to enter into

of the plaintiff must therefore be reversed. such contract, it would seem to follow they

Reversed could enter into another whereby the former ceased to be of any force or effect, unless in

STEELE, C. J., and GABBERT, J., concur. the meantime the person for whose benefit it was made in some manner has indicated he accepts the contract, or it can be implied

(40 Colo. 340) he did so. By so doing he acquires the rights

MACKENZIE v. PORTER (two cases). and assumes the burdens incident thereto." (Supreme Court of Colorado. July 1, 1907. In Simson v. Brown, 68 N. Y. 355, it was

Rehearing Denied Oct. 7, 1907.) held that a bond and guaranty were dis- 1. ACTiox-JOINDER OF CAUSES OF ACTIONcharged by the obligee releasing the same and

RENT AND UNLAWFUL DETAINER. consenting to a cancellation before the per

The action of unlawful detainer is not a

common-law action, and, in the absence of statuson whom it was intended to secure had tory provisions therefor, a demand for damages or rent cannot be joined in an action for possess the county court on the motion of the landsion of the premises.

lord, and the tenant vacated the premises. Ed. Note.-For cases in point, see Cent. Dig. Thereafter the landlord commenced two suits vol. 1, Action, 88 469-479.]

in a justice court, one against the tenant to 2. JUDGMENT-RES JUDICATA.

recover three months' rent of the premises Mills' Ann. St. 1973, provides that any person shall be deemed guilty of an unlawful covering the period from the date of the detention of real property (paragraph 3). when termination of the tenancy to the date when any tenant shall hold over after the expiration

the action for possession was commenced. of the term, etc. Section 1984 provides for the recovery of rent in an action under paragraph 4

the other against the tenant and his sureties of section 1973, but in no other class of cases. on the additional undertaking on appeal to Section 1995 provides for the recovery in a sep- the county court to recover damages for witharate action of treble damages for any injuries sustained by the plaintiff while deprived of pos

holding possession of the premises pending session. Section 2014 provides that in all suits the appeal to the county court from the judybefore a justice each party shall bring for- ment for possession. In the first case judg. ward all demands existing at the commencement

ment went for the landlord against the of the suit which can be consolidated into one action or defense, and, on neglecting so to do,

tenant for the amount of the demand. In shall be debarred from suing for any debtor the second the justice dismissed as to the demand. Held, that the failure of a landlord to

sureties, and gave judgment against the join in a suit for possession of the premises a demand for the rent did not debar him from re

tenant for 112 months' rent, the period of covering for rent accruing prior to the com- time which elapsed between the rendition mencement of the suit for possession.

of the judgment for possession in the justice 3. JUSTICES OF THE PEACE-ACTIONS-UNITING

court and the dismissal of the appeal in the DIFFERENT CAUSES. An action by a landlord against a tenant

county court. From these judgments the to recover rent accruing from the termination of tenant appealed to the county court, where the tenancy to the time of the commencement of the appeals were consolidated, and a trial to an action for possession of the premises cannot

the court without a jury, upon an agreed be united in a justice or county court with an action against the tenant and his sureties on an statement of facts, resulted in judgments undertaking on appeal to the county court from against the tenant, to reverse which these the judgment of possession to recover damages

appeals were prosecuted to the Court of Apfor withholding possession of the premises pending the appeal.


The tenant insists that the landlord is Appeal from County Court, City and Coun

barred from recovering any judgment against ty of Denver; Ben B. Lindsey, Judge.

hiin for rent which had accrued prior to the Two separate actions by Henry M. Porter

commencement of the original suit for posagainst A. Mackenzie consolidated by con

session, as he did not join in such suit a desent, and, from judgment for plaintiff in each

mand for the rent, by reason of section 2014, case, defendant appeals. Affirmed.

Mills' Ann. St., which provides: "In all John T. Bottom, for appellant. Benedict suits which shall be commenced before a jus. & Phelps, for appellee.

tice of the peace, each party shall bring for

ward all his or her demands against the MAXWELL, J. By stipulation two causes other, existing at the time of commencing have been consolidated in this court. Aj- the suit, which are of such a nature as to be pellant and appellee sustained the relation of consolidated into one action or defense, and tenant and landlord, respectively. The teu- on refusing or neglecting to do the same, shall ant held over after service of statutory no- forever be debarred from the privilege of sutice terminating the tenancy. The landlord ing for any debt or demand." The action had judgment for possession of the premises, of unlawful detainer is not a common-law in a justice court, in an action brought un- action, but is purely statutory, and, in the der paragraph 3, § 1973, Mills' Ann. St., absence of statutory provisions therefor, : which is: “Any person shall be deemed and demand for damages or rent cannot be joineil held guilty of an unlawful detention of real in an action for possession of the premproperty in the following cases. * (3) ises. Shunick v. Thompson, 25 Ill. App. 619; When any lessee, or tenant, at will, or by suf- Ow v. Wickham, 38 Kan. 22.5, 16 Pac. 333. ferance or for any part of a year, or for one Under our statute (section 1984, Mills' Ann. or more years, of any real property, includ- St.) provision is made for the recovery of ing a specific or undivided portion of a build. rent in an action commenced under paragraph ing, or dwelling. shall hold over, and con- 4 of section 1973, but in no other class of tinue in possession of, the demised premises, cases. The action here involved was under or any portion thereof, after the expiration paragraph 3 of section 1973. Section 1995, of the term for which the same were leased, Mills Ann. St., provides for the recovery, in or after such tenancy, at will or sufferance, a separate action, of treble damages for any has been terminated by either party." An damages or injuries sustained by the plaintiff attempt was made by the tenant to perfect during the time he shall have been depriver! an appeal from this judgment to the county of the possession of the premises. Under court, which proved unsuccessful by reason of the above provisions of the statute the posia defect in the statutory additional undertak- tion of the tenant upon this proposition is uuing required. The appeal was dismissed in tenable.

The tenant also contends that, as to the vided that after five years the city council might judgment rendered against him on the defect- require the company to fix schedule rates for ive appeal bond, the landlord is estopped

private consumers equivalent to an average rate

prevailing in certain other cities for the same to maintain suit thereon for the reason that service, and in a suit to establish such rate it he, the landlord, brought about a decision to was found impossible to determine the average the effect that the bond was void. An in- rate prevailing in such cities for the same serv

ice, because the charges in each were fixed on spection of the bond upon which the judg

an entirely different basis, a decree attempting ment was rendered leads to the conclusion to fix a schedule according to such average, in that the court erred in dismissing as to the which more than two-thirds of the rates estabsureties thereon. The landlord is not com

lished were not based on any mathematical com

putation with reference to the rates charged in plaining of this error, and the tenant is in no

such cities, but were the same as previously position to do so. If we assume that the bond charged by the water company in 1895, was was defective as a statutory bond to effect

erroneous. the purpose for which it was intended, to

5. SAME-ISSUES. wit, to perfect an appeal from the judg

Where a suit was brought against a water

company to establish a new schedule of rates ment for possession, it certainly was valid as

under à franchise authorizing the city council against both priucipal and sureties as a vol- to require the company to fix schedule rates for untary common-law bond entered into for a private consumers equivalent to the average rate

prevailing in certain cities for the same service, sufficient consideration. Smith v. Stubbs, 16

and it was charged that the schedule fixed by the Colo. App. 130, 63 Pac. 955; Swofford Bros.

company was not the average rate prevailing D. G. Co. v. Livingstone, 16 Colo. App. 257, for the same service in such cities, on which is65 Pac. 413. This contention of appellant

sue was joined, a determination of rates, not

based on the average rate charged in the cities is also without merit. The two causes of

in question, "to determine a fair, just, and reaaction upon which judgments were rendered sonable rate," was erroneous, as not within the below, here consolidated, were separate and issues. distinct and against different parties in dif- 6. SAME-FRANCHISE PROVISIONS — EXFORCEferent interests. They could not have been

MENT. united in a justice court nor in the county

Where the schedule of water rates prevail

ing in certain cities was based on such radically court.

different classification and methods of computaThere is no error of which appellant can tion and such a diversity of uses and services, complain in the record of either cause, for

etc., that it was practically impossible to ascerwhich reason the two judgments will be af

tain an average schedule of rates in the tbree

cities for the same service, the provision in a firmed.

water company's franchise authorizing the city Affirmed.

to require the company to fix schedule rates for private consumers equivalent to the average

charge prevailing in such cities for the same The CHIEF JUSTICE and CASWELL, J., service was invalid. concurring.

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 48, Waters and Water Courses, $ 292.] (41 Colo. 77)



Where a water company's franchise fixed

the rates for service, and an ordinance conferred (Supreme Court of Colorado. July 1, 1907. on the company the privilege of laying mains in Rehearing Denied Oct. 7, 1907.)

the streets, avenues, alleys, and public places of

the city "and additions thereto,” independent 1. WRIT OF ERROR — REVIEW - RULINGS ON contracts to furnish water to consumers in disPLEADINGS-DISCRETION.

tricts outside the city at different rates were Rulings on motions directed to the plead- neither abrogated nor affected by the subsequent ings in the trial court are largely within the incorporation of such districts within the city court's judicial discretion, and will not be inter- limits. fered with on a writ of error, unless it clearly

8. SAME-PRESSURE. appears from the record that such discretion

A water company's franchise required a has been abused.

pressure of 115 pounds at a specified hydrant. [Ed. Note. For cases in point, see Cent. Dig. With the city's consent the system was changvol. 3, Appeal and Error, § 3825.]

ed from a pumping to a gravity system, which 2. SAME-RECORD-PREPARATION-BRIEFS.

resulted in largely increasing the water supply, Where rulings on motions with reference to

but reduced the pressure at the ruling hydrant pleadings are relied on for reversal, the precise

to 85 pounds. It was proved that the presént language to which the motions are addressed system furnished abundant and much greater should be called to the attention of the Supreme

water supply, which would be equivalent to a Court by quoting the same in the briefs.

pressure of 115 pounds at the ruling hydrant in

cases of fire, and that the city's officers had de3. SAME-FINDINGS OF FACT-REVIEW.

clined to permit a return to the pumping system. Where findings of fact and a decree are Held, that the company had not violated its based on either conflicting or undisputed evi- franchise by permitting the pressure to decrease dence, and there is substantial evidence to sup

at the ruling hydrant. port them, they will not be disturbed by the Supreme Court.

En Banc. Error to District Court, Arapa[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3983–3989.)

hoe County; Owen E. Le Fevre, Judge.

Suit by the city of Denver against the 4. WATERS-MUNICIPAL SUPPLY-RATES-DE

Denver Union Water Company. From a deCREE. Where an original water company's fran

cree in favor of defendant, plaintiff brings chises, to which defendant had succeeded, pro- error. Affirmed in part, and reversed in part.

James M. Ellis, H. J. Orahood, and Henry, owing to the difference in elevation, there A. Lindsley (Wm. Henry Smith, special coun- shall be less than forty-five pounds pressure, sel), for plaintiff in error. Thomas B. Stu- with a pressure of one hundred and fifteen art, amicus curiæ. C. J. Hughes, for defend pounds at the hydrant in front of the Union ant in error.

Depot, to the number of fifty or more, the

said company shall put such hydrants upon a MAXWELL, J. April 10, 1890, the city separate high service, and keep and maintain council of the city of Denver passed an ordi- on each of said hydrants a water pressure nance, know as "Ordinance No. 44, Series of of not less than fifty pounds.” 1890," the title of which is: “A bill for an Attached to this ordinance is a schedule of ordinance continuing and extending the fran- water rates, designated as "Schedule A." chise and privileges of the Denver Water This ordinance was accepted by the company Company and making a contract with such in writing, and thereby became a contract becompany for the supply of water for public tween the city of Denver and the water comand private purposes. It is not necessary pany, its successors and assigns. The Dento set out this ordinance at length in this ver Union Water Company, defendant in eropinion. It is sufficient to say that in its gen- ror here, became the owner of the property eral provisions it is similar to ordinances of and franchises of the Denver Water Company like character granting to the company, its some time during the year 1894, and is the successors and assigns, the right to lay and successor of the Denver Water Company unmaintain its pipes in the streets, avenues, der the terms of the ordinance, charged with alleys, and public places of the city for the all of the duties and liabilities imposed by purpose of supplying the city and its inhabit- the ordinance, and entitled to all the rights ants with water for municipal and domestic and benefits thereby granted. uses for the term of 20 years from its date. October 2, 1895, the city council of the city The sections of the ordinance pertinent to the of Denver passed a resolution requiring the matters involved in this controversy are as Denver Union Water Company to fix a schedfollows:

ule of rates for private consumers of wa"Sec. 5. The rate to private consumers for ter in the city of Denver equivalent to the water shall not be greater than now charged average rate prevailing in the cities of Chiby the said the Denver Water Company, a cago, St. Louis, and Cincinnati for the same schedule of which rates is hereto annexed, service, in accordance with the provisions of marked 'Schedule A,' and the said the Denver section 5 of the ordinance hereinbefore quotWater Company may require any consumer ed. Intervening the last above date and Noto furnish a meter and pay for water by me- vember 1, 1895, the date upon which the semiter measurement; provided, however, that annual water rates for the ensuing six months at any time after five years from date the became due, the water company issued a city council may require said company to fix schedule of rates which was entitled: "The schedule rates for private consumers equiva- Denver Union Water Company's Schedule of lent to the average rate prevailing in the Semiannual Rates, Payable in Advance on cities of Chicago, St. Louis and Cincinnati, the First Days of May and November for for the same service.

Each Year at the Office of the Company, 501 "Sec. 6. The said the Denver Water Com- 17th Street, Corner of Glenarm Street. pany shall at all times furnish water to the Take Effect November 1, 1895." This schedcity and to private consumers of a quality as ule of rates will be hereafter referred to as good and fit for private consumption as that the "leaflet schedule." April 29, 1897, the shown by the analysis made by order of the city council of the city of Denver passed an city of Denver by Prof. Joseph A. Sewall, in ordinance in which it was declared that the the month of August, 1889."

rates charged by the Denver Union Water “Sec. 8. The said company shall at all Company to private consumers of water are times until the 1st day of May, 1891, keep and not, and had not been since October 2, 189.), supply the said hydrants with an abundant nor since April 10, 1895, equivalent to the supply of water for fire purposes under such average rates prevailing in the cities of Chipressure as it now gives; and after said 1st cago, St. Louis, and Cincinnati to private conday of May, 1891, shall supply all of said hy. sumers of water for the same service, and redrants and any hydrant which may be order- quired the company, on or before 10 days afted to be set upon additional mains, as here- er the date of the passage of the ordinance inafter in this ordinance mentioned, with a and the service of a cops thereof upon the pressure equivalent, taking the elevation of company, to comply with the terms of the the surface of the ground into account, to resolution of the city council passed October one hundred and fifteen pounds at the hy- 2. 1895. A certified copy of this ordinance drant in front of the Union Depot in said was served upon the company shortly after city: provided, the city shall not be in de- the passage thereof and before the commencefault with the company upon any of its agree- ment of this suit. ments, and provided, further, that if, owing May 21, 1897, a complaint was filed in the to the extension and growth of the city, hy- district court of Arapahoe county by the drants shall be ordered upon locations where, city of Denver as plaintiff against the Denver Union Water Company as defendant. fendant to comply with the requirements of This complaint in effect alleged that the wa- sections 6 and 8 of the ordinance were much ter company had failed and refused to com- elaborated, but in effect the same as those of ply with the requirements of section 5 of the the complaint. The prayer of this amended ordinance above quoted, relating to the fixing complaint was substantially that of the origof a schedule of rates as therein specified. inal complaint. A motion to strike certain It further alleged that the defendant had allegations of the amended complaint and a violated section 6 of the ordinance, in that motion to make the same more specific were the water which it had furnished was impure interposed by defendant to the amended comand unwholesome for domestic uses, and also plaint. In the main these motions were ruled that there had been a failure upon the part by the court in favor of the defendant. The of defendant to supply the pressure required rulings of the court upon these motions adby the provisions of section 8 of the ordi- verse to the plaintiff have been assigned as nance. The prayer of this complaint was for errors, and will be hereafter considered and an order of the court directing the defendant disposed of. to establish a schedule of rates equivalent to As a result of the ruling of the court upon the average rate prevailing in the cities of the motion to make more specific, plaintiff Chicago, St. Louis, and Cincinnati for the filed a second amended complaint October 15, same service, and that such schedule of rates, 1897, which in substance was the same as when so prepared by the defendant, should be the original and amended complaints, difsubmitted to the court and by its decree fering, however, from those pleadings, inter made the schedule of rates for private con- alia, in this: that pursuant to the order of sumers of the city; that the court should fix the court there was embodied in this coma schedule of rates for private consumers plaint a table of rates in parallel columns, equivalent to the average rate prevailing in alleged by plaintiff to contain the schedules the cities of Chicago, St. Louis, and Cincin- of rates prevailing in the cities of Chicago, nati for the same service; that the defend- St. Louis, and Cincinnati for private consumant by order of the court be required to fur- ers for the same service or character of servnish the quality of water and the pressure ice, provided for by Schedule A, an average required by the ordinance; for a preliminary of the three cities named, "Schedule A," and injunction restraining the defendant from the schedule of rates promulgated by the collecting any water rates from private con- company previous to November 1, 1895, known sumers of water until the rates had been as the leaflet rates." This table of rates, fixed and determined by the court, pursuant comprising the six schedules above enumeratto section 5 of the ordinance of 1890; for ed, was denominated a "comparative table.” an order compelling the defendant to allow It is noticeable that the average rate of the a rebate on all rates by it collected since three cities as given in this comparative April 10, 1895, in excess of the rates allowed

table differs very ntaterially from the averby section 5 of the ordinance of 1890; and age rate of the three cities set forth in the for general relief. This statement of the re- complaint and the amended complaint. The lief prayed by the plaintiff is here made up- prayer of this second amended complaint was on the theory that the prayer of the com- substantially the same as that contained in plaint or bill in equity, in general, indicates the complaint and amended complaint. Upon the nature of the bill and the character of motion of defendant, and pursuant to an orthe relief sought by the pleader, and for the der of court, plaintiff was required to plead purpose of indicating at the outset of this

in their entirety the ordinances of the cities discussion the objects which were sought to of Chicago, St. Louis, and Cincinnati which be attained by the plaintiff by and through established water rates for private consumithis proceeding.

ers in those three cities. This was done by After the service of summons, but before filing an amendment to the second amendeď the appearance of the defendant, an amended

complaint. complaint was filed by the plaintiff June 19, At this stage of the proceedings counsel for 1897. The substance of this amended com- the defendant took the position that the plaint was in effect the same as the original second amended complaint stated three causcomplaint, with much elaboration, however. es of action, based upon alleged violations of The amended complaint embodied in detail the contract by the defendant, relating to its. Schedule A, which was the schedule of water failure to establish a schedule of rates as rerates attached to the original ordinance of quired by section 5, its failure to provide 1890, and referred to in section 5 of said ordi

the quality of water required by section 6. nance, and in a parallel column set forth a

and its failure to supply the city with the schedule of water rates which was alleged pressure required by section 8. This view to be the equivalent of the average rate pre- of the controversy seems to have been convailing in the three cities named in th ordi- curred in by the court below. The order of nance for about three-fourths of the items the court upon this motion of defendant is contained in Schedule A, or such items as it not set forth in the abstract of the record, at that time seemed possible for plaintiff to but the result contended for by defendant give the average of. The allegations of this seems to have been accomplished by an order amended complaint as to the failure of de- October 18, 1897, requiring defendant to an

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