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leged in the answer, there was no fatal depart- | comes. This contract, inter alia, recites ure in the pleading: it appearing that such lim- that in consideration of plaintiff's agreement itations were invalid.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 358-384; Dec. Dig. § 180.*] 3. CARRIERS (§ 218*)-LIVE STOCK CONTRACT -INSPECTION OF CARS.

Provisions of a carrier's live stock contract that the shipper should inspect the cars in which the stock was to be transported, and that the shipper's loading the stock into the cars should be an acknowledgment and acceptance by him of their sufficiency and suitability in every respect, and that the carrier should not be liable for damages caused by delay, etc., were unreasonable, as an attempt by the carrier to limit its liability for its own neglignece.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 687, 933-939, 943; Dec. Dig. 8 218.*]

OF

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 939; Dec. Dig. § 218.*]

5. CARRIERS (§ 218*)-DAMAGE TO CATTLESUIT-TIME-WAIVER.

to the limitation of the carrier's liability, the latter gave to him, at his special request, a reduced rate, which is less than its regular tariff rate for the transportation of cattle at the carrier's risk. One paragraph of the contract provides that the carrier shall not be liable for any injuries to the cattle, unless the same "is the direct result of willful misconduct or actual negligence of said carrier, its agents, servants, or employés." Another provision requires the shipper to inspect the cars in which the stock was to be transported, and the fact of his loading the stock into the cars is to be an "acknowledgment and acceptance by him of the sufficiency

4. CARRIERS (§ 218*)-TRANSPORTATION LIVE STOCK-SUIT-PRESENTATION-TIME. and suitability in every respect of said cars." A provision in a carrier's cattle contract By another paragraph the shipper assumes that any suit for loss or damage to the cattle all risk of loss or damage to the stock "beshall be brought within 90 days after the same cause of any defect or insufficiency in said occurred, and not afterwards, is reasonable and valid. cars," and the carrier purports to exempt itself from the common-law liability to transport the cattle within a reasonable time, and the shipper thereby relieves the carrier of all damage which might be caused by reason of delay in transportation. By still another clause the shipper acknowledges that he had the option of making this shipment under the regular tariff rates, and that he voluntarily selected that named in the contract, which was different from and less than the regular rate for such transportation. The contract also provides that any suit for loss or damage to the cattle shall be brought within 90 days after the same occurred, and not afterwards.

Where a carrier's transportation contract required suit for loss or damage to be brought within 90 days, and not afterwards, an allegation that defendant led plaintiff to believe that his claim would be settled without suit, and though more than 90 days expired before action brought, defendant took more than that time to investigate the claim before refusing to pay it, and verbally agreed that if payment was finally refused, it would waive compliance with the contract limitation, alleged sufficient facts to show a waiver thereof or an estoppel.

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 218.*]

Error to District Court, City and County of Denver; George W. Allen, Judge.

Action by J. P. Adams against the Colorado & Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

C. M. Deardorff and Goudy & Twitchell, for plaintiff in error. E. E. Whitted and Robert H. Widdicombe, for defendant in error.

CAMPBELL, C. J. To defendant railway company, a common carrier, plaintiff delivered, at Loveland, beef cattle to be delivered to him at the Union Stockyards in Denver, Colorado, which live stock, as he alleges, were, because of defendant's negligence, injured during transit, for which a recovery in damages is sought. Defendant's negligence, upon which the action is based, is said to be the furnishing of unsafe and unsuitable cars for the shipment, and unreasonable delay in delivering the cattle. In the answer defendant denies some of the allegations of the complaint, and, by a special defense, sets up a limited liability live stock contract under which the shipment was made, the terms of which operate to release it from damages, within the shield of which the answer says the defendant's case, as pleaded,

The replication admits the execution of the special contract, but says that it is void for want of consideration, in that the freight rate charged plaintiff was the regular rate charged by the carrier for the shipment of live stock, and not a reduced rate at all, that

it was not given at his request, and that he had no opportunity or choice of shipping his cattle over the defendant's road under any other contract than that set out in the answer. The replication further alleges that the contract is against public policy and void, in that it purports to relieve the defendant carrier from the consequences of its own negligence in failing to furnish suitable cars to transport the cattle and deliver them without unreasonable delay. It admits that suit was not brought within the period of 90 days from the date of the injury, but, as a reason therefor, alleges that defendant acknowledged that there was justice in plaintiff's claim and led him to believe it would be settled without suit, and although he took a much longer time than 90 days for the bringing of the action, defendant took more than this time for the purpose of investigating the claim for damages before refusing to pay it, and verbally agreed with him that, if the payment of the claim was finally refused, it

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

would waive compliance with the 90-day limit. Defendant's motion for judgment on the pleadings was sustained, the action was dismissed, and plaintiff is here with his writ of

error.

of the carrier, may not be recovered, because the contract expressly recites that the carrier shall not be held therefor. If this is not contracting against negligence, what is it? So, also, it is said that, inasmuch as the carrier did not agree to deliver the cattle within any specified time, it may not be held for any damage which was occasioned by an unreasonable delay in the delivery thereof to the consignee at the Union Stockyards in Denver. This is said to be true, because the contract recites that the shipper assumes all loss or damage sustained by reason of delay in transportation that does not result from "willful misconduct or actual negligence of the carrier." If this is not an attempt by contract to avoid liability for negligent delay in delivering, what does it mean? Such stipulations are absolutely void as against public policy, because, if given effect, the carrier would thereby be relieved of its commonlaw duty in these two particulars.

We notice several minor assignments in view of another trial. Lefendant says that, since plaintiff by his replication admits the making of the special contract alleged in the answer, and in his complaint declares a

court (Estes et al. v. Denver & Rio Grande Railway Company, 113 Pac. 1005).

Defendant says that, even though the clauses of the special contract already considered are void, nevertheless the time lim

In most of the courts of this country it is no longer an open question that a common carrier may not, by special contract, limit or evade its common-law liability for the consequence of its own negligence, or that of its agents. We shall consume no time by arguing a proposition so well established and wholesome. Such is the law of this jurisdiction, as declared in Union Pacific Railway Company v. Rainey, 19 Colo. 225, 34 Pac. 986. The same doctrine is established for the federal courts in Railroad Company v. Pratt, 22 Wall. 123, 22 L. Ed. 827. Many other cases might be cited. Defendant admits that such is the law, but contends that the special contract here pleaded is not of the character inhibited, since the carrier does not thereby seek to relieve itself from liability for its own "willful misconduct or actual negligence." Degrees of negligence are not recognized in this jurisdiction. Some courts, as in Illinois, speak of gross and slight negligence, and the courts of that, and some oth-breach of the defendant's common-law duty, er, states, have said that a carrier may, by there is a departure in the replication from a fair agreement, stipulate for exemption the cause of action stated in the complaint. from the consequences of his slight or ordina- This contention is absolutely without merit, ry negligence. But the great weight of au- and has been resolved against defendant's thority, including our own decisions, disre-contention in a case recently decided in this gard the doctrine of degrees of negligence and repudiate the rule of the contractual release of common carriers from liability for their own negligence, whether gross or slight. Thompson on Negligence, § 6510 et seq. This contract may have been drawn with refer-itation for bringing of the action is valid and ence to the line of decisions which we have rejected, but it cannot be upheld in this jurisdiction. The language of these limiting clauses we have quoted, would, if stamped with judicial approval, effectuate the release of the carrier from its acts of ordinary negligence, and we unhesitatingly declare such provisions invalid. To say that this contract does not purport to relieve the carrier from liability for its own negligent acts, because thereby it may still be held for "willful misconduct or actual negligence," though not for its negligence of an alleged lesser degree which the law requires of it in such cases, is a mere play upon words. The general common-law rule is that a carrier of live stock must provide reasonably safe and suitable vehicles for transporting freight, and deliver it to the consignee without unreasonable delay. 2 Hutchinson on Carriers (3d Ed.) §§ 496, 497, et seq.; section 509 et seq. This contract assumes to shift, such duty from the carrier and impose it on the shipper. It recites that the shipper himself made the selection, and was aware of the unsuitableness of the cars, if they are unfit. And therefore it is argued that damages which were caused by any defects in the cars employed, which

the action is barred, in the absence of a subsequent agreement between the parties waiving the same, or of conduct upon the part of the defendant by which the same has been waived, or defendant estopped to take advantage of it. We are of opinion that a reasonable limitation, such as this, is valid, if there was a valid consideration for it. In the replication sufficient facts are alleged to show that defendant either waived this clause or is now estopped. The conduct of defendant, which is there set forth, is sufficient to constitute either a waiver or an estoppel. The principal objection urged against this plea is that there is no distinct allegation that the alleged conduct of defendant relied upon as a waiver, or estoppel, took place before the expiration of the time limit, and that, if it took place afterwards, there could be no waiver or estoppel. We do not decide this particular point, for we are of opinion that a fair construction of the replication is that the conduct occurred before such expiration, and defendants admit that a waiver occurring then is good as a plea. At least the replication, in the absence of a motion for a more specific statement, is good as against the general objection now made

(49 Colo. 560)

The holder of a note can recover thereon,

Another contention of defendant is that there were material allegations of the first SYKES v. KRUSE et al. defense in the answer, consisting of new mat-(Supreme Court of Colorado. Feb. 6, 1911.) ter, which were not denied by the replication, 1. BILLS AND NOTES (§ 443*) RIGHTS ON the language of which is: "He denies each TRANSFER-ASSIGNMENT. and every allegation of new matter in the defendant's first defense contained." By this language, it is said, it is uncertain what the pleader himself considers new matter. We do not think that the supposed new matter in the first defense of the answer is of such

a character that it is important to consider this objection. If it is defective, it may be cured by proper amendment, if the case should be tried again. It appears that this objection was not urged below or passed upon by the trial court, and it is entirely clear that the court sustained the motion for judgment on the pleadings upon the ground that defendant could not be held for the acts of negligence charged, because it had exempted itself therefrom by the provisions of the special contract which we have held void. In view of what has been said, it is not necessary to decide whether there must be some special consideration other than that recited in the bill of lading or limiting contract, upon which must rest the exemptions of the carrier here pleaded. The replication alleges that plaintiff had no option to accept any other contract than the one under which the shipment was made, no opportunity for a selection of any other, and that, instead of the rate being a reduced, it was the regular, rate which defendant charged for such transportation. The plaintiff says he is sustained by the greater number of decisions upon this phase of the case. The trend of decisions apparently was in this direction, at least until the recent case of Cau v. Texas & Pacific Railway Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053, which was followed in Arthur v. Texas & Pacific Railway Co., 204 U. S. 505, 27 Sup. Ct. 338, 51 L. Ed. 590. The doctrine there announced is that, if the stipulation for exemption is just and reasonable in the eye of the law, the primary responsibility of a carrier may be modified by contract, and that it is not necessary that an alternative contract be presented to the shipper for his choice, or that an independent consideration, apart from that expressed in the bill of lading, is necessary to support it. But, however that may be, in our view, as we have said, it is not necessary for us to express an opinion, for the reason that the exemptions here claimed as the result of the contract are neither reasonable nor just, but, under almost all the authorities, and as we now hold, are absolutely void.

The judgment is reversed, and the cause remanded for a new trial in accordance with the views herein expressed.

Reversed and remanded.

WHITE and BAILEY, JJ., concur.

though he paid nothing for the assignment thereof.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1380; Dec. Dig. § 443.*] 2. APPEAL AND Error (§ 1169*)-REVERSAL. A judgment rendered on several notes, aftmight have more than offset the amount thereer striking out a good counterclaim which of, will be reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. § 1169.*]

3. BILLS AND NOTES (§ 396*)-PRESENTMENT AND NOTICE.

The negotiable instruments act adopts the rule of the law merchant that presentment and notice of dishonor is essential to hold an indorser of a note.

Notes, Cent. Dig. §§ 1022-1028; Dec. Dig. § [Ed. Note.-For other cases, see Bills and 396.*]

4. BILLS AND NOTES (8 469*)-ACTIONS-COMPLAINT PRESENTMENT AND NOTICE.

A complaint against an indorser, which fails to allege presentment and notice of dishonor, does not state a cause of action. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1494-1502; Dec. Dig. § 469.*]

5. PLEADING (§ 204*)-DEMURRER.

A demurrer to the whole complaint should be overruled, if one of the causes of action. therein is good.

[Ed. Note.-For other cases, Cent. Dig. 88 486-490; Dec. Dig. § 204.*] see Pleading, 6. APPEAL AND ERROR (§ 193*)-PRESENTATION OF GROUNDS OF REVIEW-OBJECTIONS -PLEADING-COMPLAINT.

Under the express provisions of Code, § indorser of a note states no cause of action be55, the objection that a complaint against an cause of failure to allege presentment and notice of dishonor may be raised for the first time on appeal, though the complaint states a cause of action against him as maker of another note in suit.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1232-1236; Dec. Dig. § 193.*]

7. APPEAL AND ERROR (§ 233*)—PresentATION OF GROUNDS OF REVIEW-QUESTION IN LOWER Court.

A motion for nonsuit, on the ground that the complaint states no cause of action, is a sufficient presentation of the objection in the trial court.

Error, Dec. Dig. § 233.*]
[Ed. Note. For other cases, see Appeal and

8.

TRUSTS (§ 231*)-SALE of Trust Property

-PURCHASE BY TRUstee.

A trustee may acquire title to trust property at a judicial sale not brought about by himself.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. $$ 330-335; Dec. Dig. § 231.*] 9. ASSIGNMENTS FOR BENEFIT OF CREDITORS ($_258*)-ADMINISTRATION OF TRUST ESTATE -PURCHASE BY TRUSTEE.

A trustee for the benefit of creditors violates his trust when he buys for himself, at execution sale, property which in equity belongs to the insolvent creating the trust, and

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

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In a suit against an indorser of notes given to a bank by an insolvent company, the answer and counterclaim alleged that the notes in suit were assigned to plaintiff after maturity, and that the bank was the real owner thereof; that the president of the bank became trustee for the company's creditors, and that in violation of his trust he bought for his bank, at execution sale, property which in equity belonged to the company, and which he had agreed to buy for all the creditors. Defendant asked for an accounting by the trustee and the bank, and for general relief. Held, that the matters set up in the answer arose out of the contract creating the trust existing at the commencement of the suit so as to be a subject of counterclaim within Code, § 57.

[Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. § 29.*]

11. BILLS AND NOTES (§ 459*)- ACTIONS PARTIES-DEFENDANTS JOINDER.

Since the answer entitled defendant to affirmative relief, the trustee and the bank were properly made parties to the action.

the sheriff thereon as against them. All of these motions were granted. Whereupon Sykes filed an amended separate answer and counterclaim, setting forth, substantially, but with some amendments, the same matters contained in the first answer. Plaintiff then filed a motion to strike the material parts of the counterclaim, which was granted. Substantially all that was then left of Sykes' amended answer was the admission of the making of the one note and the indorsement of the other five and their delivery to the Rocky Mountain National Bank, with a want of knowledge on his part as to whether the notes were owned by plaintiff, coupled with an allegation that, if they were indorsed or delivered to plaintiff by the bank, it was without consideration and after their maturity. The new matter of the answer not stricken was denied by the plaintiff in a replication. Upon the trial plaintiff, having the notes in his possession, produced them, and testified that he was the owner and holder of them, and rested. The defendant Sykes, on cross-examination, was not permitted by the court to ask plaintiff what he paid for the notes. He then moved for a nonsuit on the ground that neither the proof nor the plead

[Ed. Note. For other cases. see Bills and Notes, Cent. Dig. §§ 1424-1433; Dec. Dig.ings entitled plaintiff to a judgment on the

459.*]

Error to District Court, Gilpin County; Flor Ashbaugh, Judge.

causes of action set forth in the complaint. which was denied. The court rendered judgment for plaintiff against defendant Sykes in the aggregate sum of about $40,000, being the full amount of the principal of the notes and the interest. This judgment was exceptRe-ed to by Sykes, and he is here with his writ

Action by H. Jacob Kruse against Richard Sykes and others. Judgment for plaintiff, and defendant Sykes brings error. versed and remanded.

Macbeth & May and John F. Truesdell, for plaintiff in error. H. A. Hicks and L. J. Williams, for defendants in error.

of error.

Plaintiff being the holder of the notes and having produced them at the trial, even though he paid nothing for the assignment, was entitled to recover against defendant Sykes, the maker of one and indorser of the others, unless for some reason other than the alleged lack of consideration for the assignment defendant could not be held. Walsh v. Allen, 6 Colo. App. 303, 40 Pac. 473. It might be, were it not for the matters alleged in the answer by way of counterclaim, that the judgment would be permitted to stand as to one of the causes of action set up in the complaint, namely, the one on the promissory note of which defendant was the maker; but, as we shall hereafter see that the judgment was for a greater sum than plaintiff was entitled to, and that the counterclaim. which we think good, if proved, might have more than offset the amount thereof, it must be reversed in its entirety. Denver & Rio Grande Ry. Co. v. Neis, 10 Colo. 56, 14 Pac. 105; Buenz v. Cook, 15 Colo. 38, 24 Pac. 679; Welch v. Jepson, 13 Colo. App. 520, 58 Pac. 789.

CAMPBELL, C. J. This action was brought by H. Jacob Kruse, as indorsee of the Rocky Mountain National Bank, against the Kansas-Burroughs Consolidated Mining Company, the plaintiff in error Sykes, and one Hoffman, upon six promissory notes. The complaint contained six separately stated causes of action upon these several notes. Of five of them the mining company and plaintiff in error Sykes were indorsers merely; of one he was the maker. Sykes filed a separate demurrer to the complaint in its entirety, on the ground that it did not set forth facts sufficient to constitute a cause of action against him, which was overruled. He then filed a separate answer and counterclaim and asked for and obtained an order making the Rocky Mountain National Bank and Thomas H. Potter, its president, parties, and they were brought into court. The plaintiff below moved to strike certain parts of Sykes' answer and counterclaim and to vacate the order making Potter and the bank parties. Potter and the bank filed separate motions to quash the summons and return of

The complaint does not allege, nor does the proof show, that there was any presentment of these notes indorsed by defendant for payment, or notice of dishonor given; nor

view, even though not interposed below. The Malley Case was a suit against a father for necessaries furnished to his minor son, and defendant questioned the sufficiency of the complaint, because there was no allegation therein that the father had refused to supply the necessaries, and also on the ground that it was not alleged that the son was at the time a minor. The court expressed no opinion as to whether it was necessary for the complaint to contain the first allegation, but in answer to the contention, made for the first time on appeal, that the complaint was silent as to the status of the son, said that the defect, if any, could have been cured by a slight amendment at the trial and was not a matter for reversal. The complaint in that case did contain an averment that "defendant was a minor, and supported by and at the expense of the defendant herein." This was unquestionably a slip of the pleader, who intended to say that the son, not the defendant (the father), was a minor. The context clearly shows it, and the court might well say that the mistake, after verdict, was cured. It was not an instance where the complaint lacked an essential allegation, but where the allegation was defectively or ambiguously stated when the thought of the pleader was clear, and the mistake could have been corrected by the change of a single word-by writing "son" instead of "defendant." Such is not this case. The defect in the complaint here, which is entirely silent with respect thereto, would require a distinct paragraph in each cause of action, expressly alleging presentment and notice of dishonor, or giving some excuse for their omission.

were any facts that would excuse present- its own previous decisions that the objection ment, demand, or notice pleaded or proved. | that the complaint does not state a cause of That there must be presentment for payment action may be taken for the first time on reand the giving of notice of dishonor, under our statute, in order to fix an indorser's liability, is conceded. This is the general rule. and this case. as pleaded, does not come within any exception. Sess. Laws 1897, pp. 225, 228. $$ 70, 89. It was the rule of the law merchant; our negotiable instruments act being substantially a codification thereof. 14 Enc. P. & P. 534 et seq.; Commercial National Bank v. Zimmerman, 185 N. Y. 210, 77 N. E. 1020: Ford v. Booker. 53 Ind. 395: Bosch v. Kassing. 64 Iowa, 312, 20 N. W. 454: Knott v. Hicks, 21 Tenn. 162; Baxter v. Erwin, 1 Shan. Cas. (Tenn.) 113; Slacum v. Pomery, 6 Cranch, 221, 3 L. Ed. 205; Rushton v. Aspinall, 2 Doug. Court of Kings Bench. 679: Harlan v. Dew, 3 Head (Tenn.) | 505. Indeed, plaintiff does not question this rule of law, but seeks to escape its application upon the ground that defendant did not specifically call the attention of the trial court to the absence from the complaint of an allegation concerning presentment ard notice of dishonor. The authorities already cit- | ed hold that in a case of this kind a complaint must contain these allegations, other wise it is fatally defective; and some of the cases say that a judgment by default is not supported by such a complaint. and the defect is not cured by verdict. The complaint being thus fatally defective and not stating a cause of action upon the five causes of action, which were based upon the notes of which the defendant Sykes was merely an indorser, the objection under the express provision of section 55 of our Code may be raised at any time, even for the first time upon the review, though a general demurrer was not filed in the trial court. Plaintiff, however, says, since the general demurrer went to the whole complaint, there being one good cause of action stated, the one based on the note of which defendant Sykes was maker, it was properly overruled. Unquestionably this is true, since there was one good cause of action. Downing v. Haas, 33 Colo. 344, 81 Pac. 33. This fact, however, does not preclude defendant from raising, at any time, the objection that the complaint does not state a good cause of action as against him upon the other five causes of action. Plaintiff cites the case of Edward Malley Co. v. Londoner, 41 Colo. 436, 93 Pac. 488, to the proposition that, though a failure of the complaint to state a cause of action may be raised for the first time on review, it will not be entertained by the reviewing court, if the attention of the trial court was not specifically called to such defects therein as might have been obviated by a slight amendment upon the trial. The decision in that case must be taken in connection with its own facts. It is apparent that this court did not intend to abrogate the express provision of section 55 of the Code, or overturn many of

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Besides, the defendant, at the close of the evidence, interposed a motion for nonsuit, and called the court's attention not only to the lack of proof of these essential requirements in a suit by an indorsee against an indorser of a note, but also to the absence of the necessary allegations thereof in the complaint. Then, too, defendant's counsel state in their brief that, when the attention of plaintiff's counsel was thus called to the necessity of allegation and proof of these essential elements, they concluded they were matters of defense to be set up in the answer and established by defendant. So that, for all the foregoing reasons, it appears that defendant is in a position to question here the sufficiency of the complaint and lack of proof as to such essential matters.

We now consider the order striking the new matter of the answer which is pleaded as a defense and a counterclaim. It is lengthy, but may be thus summarized: The action, while nominally in the name of Kruse, who is a director of the Rocky Moun tain National Bank, is really in its interest, prosecuted in its behalf, wholly under its

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