substantial justice between the parties expeditiously and inexpensively. Civil Code, § 115.

The other errors assigned cannot be sustained; but for the exclusion of the testimony offered in support of the set-offs alleged in the answer there must be a reversal of the judgment, and a new trial.

All the justices concurring.

(39 Kan. 283)

HIGGINS v. CURTIS et al.

(Supreme Court of Kansas. May 4, 1888.)

1. HIGHWAYS-REJECTION OF REPORT OF VIEWERS BY COMMISSIONERS-RECONSIDERATION-CONTINUANCE FOR FUTURE ACTION. Where a board of county commissioners rejects a report of viewers appointed by it to lay out and locate a public road, such board may at the same session reconsider its action by which said report was rejected, and may continue further action thereon to a future day of that session, without thereby losing jurisdiction.

2. COUNTIES-COUNTY BOARD-POWER TO MAKE RULES FOR ITS OWN GOVERNMENT. The board of county commissioners has the power to make reasonable rules and regulations for the government of its proceedings; and, in the absence of proof to the contrary, a reconsideration of its action taken on a former day of the same session, on any matter before the board, will be presumed to have been done in conformity with its rules and regulations. Masters v. McHolland, 12 Kan. 23. (Syllabus by Clogston, C.)

Commissioners' decision.

GUTHRIE, Judge.

Error to district court, Shawnee county; JOHN

This was an action brought by the plaintiff in error to enjoin the defendants in error, as trustees and road overseers, from opening a public road through the plaintiff's land, in Shawnee county. Trial by the court, who made special findings of fact, and conclusions thereon. The findings show, and it is not disputed, that all the proceedings to lay out said road, including the appointment of viewers, and their report to the board of county commissioners, were legal. It is also shown that, at the meeting of said viewers to view and locate the road, plaintiff in error presented his claim for damages, and that he was the owner of the land over which the road was laid, and for which damages were claimed. It is also shown that the claim of plaintiff for damages was disallowed by the viewers. On the 5th day of July, 1883, the viewers' report was taken up for hearing by the board of commissioners, and was by said board rejected; and on the 6th day of July the commissioners reconsidered the action by which said report was rejected; and on the 23d day of July, 1883, at the regular session of the board, the report of the viewers for the location of the road was taken up, and the report was confirmed, and the road, as viewed and located, was ordered opened, at which time no order was made in relation to plaintiff's claim for damages, either allowing or disallowing the same. In addition to the above, the court made the following findings: "Finding 8. That no notice was given to Higgins that the board would take any steps in the location and adoption of said road subsequent to the action of the 5th of July, 1883, and Higgins made no appearance, either in person or by attorney, before the county commissioners. Finding 9. That Higgins never knew that the board had made any order in regard to said road subsequent to the order of July 5, 1885, until October 2, 1883, when he received notice from the defendants to open said road within 90 days. * * * Finding 11. That the claim of Higgins for damages, with several other claims for damages, was tacked to the report of the viewers in a bundle, and the whole was filed with the county board, and the said board, on the 6th day of July, 1883, entered upon said bundle the word 'adopted.' Finding 12. That Higgins paid no attention to the road, or the doings of the board of viewers, further than to present his claim for damages to the viewers on the 25th day of May, 1883, up to the time he was notified to open said road, in October, 1883. He was not before the board at any time, and knew nothing what the

board was doing in regard to the road, and did not try to find out." Upon these findings the court dissolved the temporary injunction, and the plaintiff brings the case here.

John Martin and H. H. Harris, for plaintiff in error. for defendants in error.

Charles Curtis,

CLOGSTON, C., (after stating the facts as above.) The contention now is that the county commissioners lost jurisdiction on the 5th day of July, when they rejected the report of the viewers, and that no further action could be taken by them until after notice was given to all the parties interested, and that their action on the 6th of July, in reconsidering their rejection of the report of the 5th, was without jurisdiction, and that all subsequent proceedings had on the 23d of July, when the report was confirmed, and the road ordered open, were void. The board of county commissioners have the power to "establish rules and regulations to govern the transaction of their business. Chapter 25, § 25, Comp. Laws 1885. In the absence of any showing as to what the rules were, we must presume that the action of the board was in conformity therewith, and that, under said rules, the board might properly reconsider its action had at a former session, and that, when so reconsidered, would stand as if no action had ever been taken thereon. If this is true, then it could continue the matter to any other day of the same session, or to any future session of the board, and no notice to any person would be necessary. If, however, it was once shown that the plaintiff was present on the 5th of July, to present his claim for damages to the board, and, while so present, the board had rejected the report of the viewers, then, before the board could take final action on the report of the viewers, and on the claim for damages of the plaintiff, notice must be given him, so that he might have an opportunity to present his claim to the board. This, however, would not prevent the board from in the mean time confirming the report of the viewers, and establishing the road, and ordering the same to be opened. Plaintiff would still have the right to present his claim for damages; and, no matter what the action of the board might be upon that claim, it could not affect the opening of the road in any manner; and if the board, as it appears from the findings of the court, took no action on the plaintiff's claim for damages, then his claim is still pending before the board, and may be presented by him at his pleasure. The findings of the court show that at the time the action of the court was taken rejecting the report of the viewers, the plaintiff had made no appearance, either at that time or at any subsequent period in the history of this road; in fact, that he paid no attention, either to the report of the viewers, the location of the road, or his claim for damages, after once presenting it to the viewers. This being true, then it was not material; for, as he had no notice of the action of the board on the 5th, no notice was necessary to be given of its action on the 6th. He had the right, if he desired, to appear before the board, and show cause why the report should not be confirined; but he was entitled to no greater notice than that given to the public generally. He knew that the report of the viewers would be made, and it was his duty, if he desired to appear before the board, to ascertain, by the rules of the board, or from such other information as from inquiry of the board he might have gained, when the report would be taken up; and, if he failed to do this, he cannot afterwards complain that action was taken in his absence. Most of the questions here raised have been passed upon by this court in Masters v. McHolland, 12 Kan. 23.

It is recommended that the judgment of the court below be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(11 Colo. 363)

PARKER v. COCHRANE et al.

(Supreme Court of Colorado. May 11, 1888.)

1. PLEADING-Counter-CLAIM.

In an action on a contract, a counter-claim against plaintiff's husband, who was not a party to the suit, pleaded in the answer after a general denial, should be stricken out as irrelevant, being in legal effect merely a denial that plaintiff is the party in interest in the suit, which was already at issue under the general denial.

2. PRINCIPAL AND AGENT-RIGHT OF ACTION BY PRINCIPAL ON CONTRACT Made by AGENT.

In an action for the purchase money of chattels purchased by defendants of plaintiff's husband, as her agent, plaintiff having shown her ownership of the chattels, and her right to recover the purchase price, and defendants merely proving that the fact of the agency was not disclosed to them at the time of the sale, nor thereafter, a judgment for defendants is erroneous.

8. PLEADING AND PROOF-COUNTER-CLAIM.

In an action on a contract, evidence is not admissible, under a general denial, to establish a counter-claim against plaintiff's husband, who is not a party to the suit, such counter-claim against the husband having been stricken out of the answer as irrelevant.

Error to district court, Fremont county.

The amended complaint alleges "that on, to-wit, the 1st day of July, A. D. 1882, the defendants became and were indebted to plaintiff in the sum of five hundred and twenty dollars for and on account of certain chattels; that is to say, twenty-six head of cattle of the price and value of twenty dollars for each one thereof, bargained and sold, and then delivered, by the plaintiff to and for the defendants, at the instance and request of the defendants; that for said cattle the said defendants, upon said delivery thereof, became and were and are liable to pay the plaintiff the price of twenty dollars for each head thereof, together with lawful interest thereon from and after said July 1, A. D. 1882, for that said price and aggregate sum was due at the date last aforesaid, and was then payable from the defendants unto the plaintiff; and that the defendants have not paid the said aggregate sum, $520, nor any part thereof; nor have they paid any of said interest; but the same is due, and remains wholly unpaid unto the plaintiff. Demand of judgment for said $520, and lawful interest thereon from July 1, A. D. 1882, the same being on January 1, 1884, $598, and for lawful interest on said $520 from January 1, 1884, till judgment herein, and for costs, and all relief proper herein." The answer denies each and every allegation of the complaint, and for second defense alleges: "That on or about December 1, 1881, they made a contract in writing with one W. C. Parker, as follows, to-wit:

"CANON CITY, COLO., December 1, 1881. "By this contract, made this 1st day of December, 1881, W. C. Parker agrees to sell and deliver to Cochrane & Dowling all cattle branded on leftside hip or shoulder; also a few branded J on side or hip; also a few branded P, hip or side, the said cattle being now ranched on Wilson gulch, near Durango, La Plata county, Colo., at the rate of $20 per head, less $200 on the whole lot. Cattle to be delivered on or before July 1, 1882. No cattle to be sold or disposed of to any other party than Cochrane & Dowling between this date and time of delivery. Cochrane & Dowling agree to receive and pay for above-described cattle at the rate of $20 per head, less $200 on the whole lot; they also agree to furnish men to hold the cattle as fast as rounded up, and to hold them till final delivery. Cochrane & Dowling have privilege of taking out what beef they may see fit, up to the time of delivery, on payment for them at $20 per head. Cattle to be delivered on road to Pagosa Springs, ter v.18p.no.3-14

miles from O'Niel's ranch, or at the Parker ranch on Wilson gulch. Received check for $2,000 on account of above contract.

"W. C. PARKER,
"COCHRANE & DOWLING.

"Witness: SAM'L S. LENDHOLM.' "That by the terms of said contract said W. C. Parker was bound to deliver to defendants all the cattle he, the said Parker, then had or owned, which were branded as therein set forth, and to deliver the same at the times and places therein stated, and for the prices therein stated. That at that time said W. C. Parker had and owned cattle near Durango, branded with said brand, to the number of 700 head, all of which were by said contract sold to defendants, and thereby became the property of the defendants, and said W. C. Parker thereby became bound to deliver the same at the time and places aforesaid. That said W. C. Parker failed and refused to perform his part of said contract in this, that up to June 30, 1882, he delivered but 521 of the said cattle. That on June 30, 1882, said W. C. Parker did deliver 26 head more of said cattle, and never any more, and defendants have never received any other thereof from any source whatever; that defendants fully did and performed all required of them by said contract, and paid $2,000, as stated therein. That said W. C. Parker represented to defendants, at the time of making said contract, that he was then the owner of said cattle branded as therein described, and there were as many as 700. That defendants believed and relied upon its truth. That said W. C. Parker retained, and failed and refused to deliver about 200, of said cattle branded as said contract described, and which, by the terms of his said contract, he was bound to deliver to defendants at the time and places therein stated, and still holds, and refuses to deliver the same, though the defendants are now and have at all times been able, ready, and willing to pay and perform as provided in said contract, and have often requested performance from said W. C. Parker. Defendants have paid on said contract $10,220. That the price and value of cattle advanced considerable soon after making said contract. That there was a large margin of profit to them in the said purchase, had all the same been delivered, to the amount of at least five dollars per head. That on this account did said W. C. Parker refuse to perform his said contract, and now, in this action, is colluding and conniving with plaintiff to defeat the rights of defendants provided by said contract, so that defendants have been damaged in the sum of one thousand dollars by reason of said W. C. Parker's failure to carry out his part of said contract. And these facts are now set forth for that said last bunch of said cattle delivered under said contract correspond in value to the demand of plaintiff herein; and defendants are informed and believe that this said plaintiff is the wife of said W. C. Parker, and believe that the said W. C. Parker is the real party hereto, and brings this action in the name of his said wife with the hope and for the purpose of defeating defendants in their rights in said contract set out. Wherefore defendants ask that this action be dismissed, and for judgment for costs, and for such other relief as they may be entitled to in the premises.' This second defense was, on motion, stricken out. Trial to the court, and judgment for the defendants. Writ of error to the supreme court.

John W. Blackburn and Samuel P. Dale, for plaintiff in error. & Shaffroth, for defendants in error.

Stallcup

ELBERT, J., (after stating the facts as above.) It is difficult to treat the second defense interposed by the defendants' answer as anything more than a plea that the plaintiff is not the real party in interest. In this view the answer is bad. The same issue is presented by the allegations of the complaint and the answer traversing them. Under the issues thus made it was compe

tent for the defendants to show that W. C. Parker, and not the plaintiff, was the real owner. Bliss, Code Pl. § 327 et seq. The written contract with W. C. Parker set up and alleged in this defense, its breach and the damages resulting therefrom, is irrelevant matter without the further allegations that W. C. Parker, in making the contract, acted as the agent of the plaintiff, and that the 26 head of cattle mentioned in the plaintiff's complaint were part of the cattle so contracted for, and were delivered under and in pursuance of this contract. These allegations would have made the defendants' claim for damages a good counter-claim against the plaintiff. If the agency of the husband was not disclosed to the defendants, it did not affect the right of the plaintiff to sue in her own name for the purchase price. Story, Ag. § 417 et seq. If the agent failed to comply with the terms of the contract of sale, it was the failure of the principal, and any damages resulting therefrom to the defendants could have been recouped under proper pleadings. Id. § 419 et seq. 452; Ewell Evans, Ag. *440. There are no sufficient allegations, however, in this defense to justify the application of these principles, and, as we have said, the whole matter, as it stands pleaded, is irrelevant, and constitutes no good defense or counter-claim to the plaintiff's action. Code, c. 4, § 62. In this connection it is to be observed that the answer does not ask to be allowed damages as a counter-claim, but that the complaint be dismissed. The theory of the defense appears to have been that W. C. Parker, and not the plaintiff, was the real party in interest, and upon this issue they relied. This was but a traverse of what was already in issue, and was properly stricken out by the court. The action of the court in this respect is not assigned as error, but we have discussed it in view of a new trial, and for the purpose of showing more clearly the errors for which the judgment of the court below must be reversed. Having stricken out the second defense, the traverse of the allegations of the complaint constituted the only issue remaining to be tried. Under these issues it was not competent for the defendants to give evidence of a counter-claim, and all the evidence, therefore, which was admitted for the purpose of showing that the defendants had sustained damages by reason of the failure of W. C. Parker to comply with the terms of the contract, was improperly admitted. In this respect the court erred. Upon the evidence properly admitted, and pertinent to the issues to be tried by the court, we are at a loss to account for its finding and judgment. The testimony offered by the plaintiff showed her ownership of the cattle, and her right to recover the purchase price. Upon these points we do not find any conflict of testimony. The testimony of the defendants only goes to the fact that the agency was not disclosed to the defendants at the time of the sale, or thereafter; but this, as we have said, did not affect the right of the plaintiff to sue and recover in her own name. On the pleadings and the evidence we are of the opinion that the court erred in rendering judgment for the defendants.

The judgment of the court below is reversed, and the cause remanded for further proceedings.

(11 Colo. 345)

GREELEY, S. L. & P. RY. Co. v. YEAGER.

(Supreme Court of Colorado. May 4, 1888.)

1. DAMAGES-EXEMPLARY.

Exemplary damages cannot be recovered in a civil action, although the tort causing the injury sued for is willful, and is not punishable criminally. 2. APPEAL-REVIEW-EXCEPTIONS.

Under Code Civil Proc. Colo. § 193, which provides that a new trial may be granted "for error in law occurring at the trial, and excepted to by the party making the application," and section 414, which provides that "exceptions taken to opinions or decisions of the district and county courts overruling * * motions for new trials * shall be allowed, and the party excepting may assign for error any opin