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 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 daily average of the sum of such amount as the said bank shall have on deposit to the credit of said George W. Kephart, for the quarter or any fraction thereof next preceding the payment of said per centum, which shall be computed and credited to the account of said George W. Kephart, Treasurer, as a part of the said state funds, and the said George W. Kephart to be at once notified of said credit and the amount thereof: Now, therefore, if the said Bank of Montrose, of Montrose, shall well and truly keep all said sums of money so deposited, or to be deposited, as aforesaid, subject to the check and order of said George W. Kephart, Treasurer, as aforesaid, and shall pay over the same and each and every part thereof, to the said Treasurer upon his written demand therefor, and shall estimate, calculate and pay said per centum as aforesaid and shall, in the event said money or any part thereof remain in its custody after the expiration of the term of office of said George W. Kephart, pay over such sum or sums to his successor in office, as shall be by him demanded and shall in all respects save and keep him, the said George W. Kephart and his sureties to the state of Colorado, harmless and indemnified for and by reason of the making of said deposit or deposits, then this obligation to be void, and of no effect, otherwise to be and remain in full force and virtue." [2] The first material assignment urged is that the money sued for was not the money the bond was given to secure. The contention is that by the terms of the instrument the bondsmen assumed liability only for money which should be deposited in the bank [1] As we understand it, the rule that a contract of surety is strictissimi juris is not a rule of construction, but a rule of application of the contract after its meaning has been ascertained, but that in ascertaining its meaning it is subject to the same tests as those applicable to any other written instrument. People, etc., v. Beach, Sheriff et al., 113 Pac. 513; Sather Banking Co. v. Briggs Co., 138 Cal. 724, 72 Pac. 352; U. S. Fidelity & Guaranty Co. v. Board of Com'rs, 145 Fed. 144, 76 C. C. A. 114; vol. 27 Am. & Eng. Enc. of Law, p. 450. After a careful review of the opinion of the Court of Appeals, supra, we are of opinion that their conclusion in this respect was correct and should be affirmed. In addition to the cases therein cited, we think that the reasons given concerning the injunction bond in the case of Meyers v. Block, 120 U. S. 206, 7 Sup. Ct. 525, 30 L. Ed. 642, sustain the reasoning of Judge Thomson in his construction of the bond here, and are specially applicable in that respect. In addition to what Judge Thomson has said, it could also be urged that the construction for which counsel contend would render the bond ineffective and make its execution a useless ceremony at the time it was entered into by the obligors and accepted by the appellee, as well as ever since, for the reason that no future deposits were intended to be made at the time of its execution, and none have ever been made; hence an indemnity against losses which did not exist, or could not have occurred up to the time of the bank's failure, was neither useful nor desired. That construction which sustains and 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. Failure of consideration is in fact simply want of consideration. Nevertheless it is laid down in a number of cases that when the consideration for a promise wholly fails the promise is without consideration and unenforceable. But this must mean that, in a contract with an executory consideration, the execution of the consideration is a condition precedent to the liability on the promise, and the failure to execute the consideration discharges the promisor." The second material question presented pertains to a failure of consideration. It is earnestly urged, by accepting the ruling of the Court of Appeals, that the promise to deposit funds in the future constituted a sufficient consideration for the execution of the bond. The answer sets up a failure of consideration in the fulfillment of this promise, and the proofs establish that no future deposits were made. In this respect it will be noted that the ruling of the Court of Appeals was based upon the pleadings as they then existed, and the opinion of that court was to the effect that the complaint showed that the money was on deposit in the name of Kephart at the time of the execution of the bond. The entire pleadings now before us, and the evidence, sustain the facts as first above stated, pertaining to which it might be consistently urged that the depositing of the money by the Treasurer, Kephårt, or his redepositing of the same in his own name by surrendering the Mulnix certificates and taking new ones in his own name in lieu thereof, and the execution of the bond to secure him therefor, were all a part of one and the same transaction, and to all intents and purposes were done simultaneously as one act, and thereby that there was a deposit of funds in the future or at the time of the execution of the bond, as contemplated by its terms. Sypert v. Harrison, etc., 88 Ky. 461, 11 S. W. 435. But it is unnecessary to make any ruling upon this question so earnestly urged upon oral argument by counsel for appellee for the reason that, accepting the position of the appellant as correct, and assuming, for the purpose of the case, that this money was on deposit at the time of the execution of the bond, and that there was no money deposited by the Treasurer after its execution, it does not follow that there was a failure of the consideration. [3] In this connection the first question which presents itself is, What was the consideration for the execution of the bond? The Court of Appeals held that it was the promise in the bond to make deposits in the future, so that if the promise was the consideration the promise was given in the bond, and hence it did not and could not have failed. It is admitted by counsel that many respectable authorities hold that there can be no such thing as a failure of consideration. In volume 9, Cyc., at page 369, upon the question of failure of consideration, it is said: "Strictly speaking, as has been well pointed out, there can be no such thing as a failure of consideration. The promisor either receives But counsel urge that while the above is usually recognized as the law, and while they concede that such promise on the part of the Treasurer, if performed, does furnish sufficient consideration for the agreement on the part of the sureties to guarantee the payment of either a past or future indebtedness from the bank, or both, yet they do not concede that the mere naked promise of the Treasurer, regardless of its performance, is a sufficient consideration to uphold the bond, but contend that the failure of the Treasurer to perform his agreement to make future deposits is a good defense to an action on the bond. They claim that in several cases in this court and the Court of Appeals it has been held that a mere naked promise, without its fulfillment, is not a sufficient consideration to enforce the obligation of the instruments, and that this rule is applicable here. It will be unnecessary to pass upon this question, for the reason that, assuming for the purpose of the case that counsel's position is correct, and that it is necessary to show that the promise had been complied with, or rather that it had not been violated, it will be noted that the bond did not provide when such funds were to be deposited in the future, nor the amount of such deposits. Had the bondsmen desired to be advised of these matters in advance, they should have made inquiry as to what the agreement was on that subject, or had it inserted in the bond as to when future deposits were to be made, and the amount thereof; not having done so, and the matter being made an issue by them, and these matters not having been covered in the bond, it was necessary and proper to resort to other evidence, in order to ascertain what the contract was in this respect between the Treasurer and the bank; when this was done we find the undisputed evidence to be that it was agreed by the Treasurer and Mr. McClure, upon behalf of the bank, that at any time after any of the $15,000 then in the bank should have been withdrawn the Treasurer would, as soon as the state funds permitted, deposit additional excessive payments to him by the other counties: provision for repayment of the excessive payments having been made. [Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 227.*] 4. COUNTIES (§ 207*)—COUNTY COMMISSIONERS -ILLEGAL PAYMENTS-RECOVERY. 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, at all times, as far as possible, to keep the sum of $15,000 on deposit in the bank, to be secured by a bond, which it was then agreed was to be furnished by the bank. This evidence in no way conflicts with the conditions of the bond, did not in any manner violate its terms, and was competent for the purposes offered. Bonney v. Robertson et al., 6 Colo. App. 485, 41 Pac. 842. The record further shows that the bond bears date January 18th; that the bank became insolvent upon September 28th of the same year; that during this period all of the $15,000 was on deposit, and the record does not show that any demand, request, or claim had been made for other deposits, under the provisions of the bond, the contract upon the subject, or otherwise. Under these circumstances, if the promise in the bond to make future deposits was the sole legal consideration running to the bank for its execution, when considered in the light of the surrounding circumstances at the time the contract was entered into, we cannot say that there had been a failure of consideration or refusal to comply with the terms of the bond up to the time the bank failed. The trial being to the court, we find no prejudicial error in the admission or rejection of evidence. For the reasons stated, the judgment is affirmed. Affirmed. The board of county commissioners being merely the county's agents, any illegal payments by it can be recovered; the defense of voluntary payment not being sustainable. [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 324, 335, 336; Dec. Dig. § 207.*1 Appeal from District Court, Clear Creek County; Flor Ashbaugh, Judge. Action by John W. McLean against the Board of County Commissioners of Clear Creek County. Judgment for plaintiff, and defendant appeals. Affirmed. E. M. Sabin, for appellant. William A. Dier, for appellee. HILL, J. Appellee sued the appellant to recover an amount alleged to be due from it to him as its pro rata share for services performed by him as water commissioner of water district No. 9. The appellant denied that its county of Clear Creek, or any part thereof, was embraced in said water district, and alleged that there are no lands in said county irrigated from Bear creek or any of its tributaries. It denied that the appellee was the water commissioner in said district No. 9 and denied that payment had not been 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. (50 Colo. 602) BOARD OF COM'RS OF CLEAR CREEK (Supreme Court of Colorado. May 1, 1911.) [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 226.*] 2. WATERS AND WATER COURSES (§ 227*)— WATER DISTRICTS COMMISSIONERS PENSATION-LIABILITY. Under Mills' Ann. St. § 2387, entitling a water commissioner to pay from the counties in which his district lies, one of three counties in which a district lies is liable for one-third of his compensation, though no services have been rendered in that county, though decreed priorities have not yet been established for ditches therein, and though there is less land irrigated in the county than in either of the other two counties. prosecuted. The statutory provisions applicable to the controversy are as follows: "That district No. nine shall consist of all lands irrigated by ditches taking water from Bear creek and its tributaries." Mills' Ann. St. § 2319. "The water commissioners shall be entitled to pay and be paid by the county or counties in which his irrigating district may lie. * * * Each board of county commissioners shall pay its pro rata share thereof." Mills' Ann. St. § 2387. [1] It will be seen that, in the section creCOM-ating water district No. 9, Clear Creek county is not mentioned by name; hence, whether it or any part thereof was embraced in said district No. 9 was a question of fact to be determined upon the evidence, which discloses that Bear creek extended into and ran through a part of the counties of Clear Creek, Jefferson, and Arapahoe; that the lands irrigated from Bear creek and its tributaries are situated in these three counties and none other; that in Clear Creek county there were some eight or nine small ditches which took water from Bear creek for the purposes of irrigation; that about 150 acres of land in Clear Creek county was irrigated by the waters from this stream through these [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 227.*] 3. WATERS AND WATER COURSES (§ 227*)-WATER DISTRICTS COMMISSIONERS COMPENSATION-LIABILITY. A water commissioner's right to recover one-third of his compensation against one of the three counties in which his district lies, un 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 had 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 counties had overpaid him, although it further appears that Jefferson withheld an amount sufficient to cover its overpayment, and that Arapahoe county had an agreement with him to be reimbursed. This third contention is not well taken. The board of county commissioners is but the agent of the county, and any illegal payment by it in violation of law can be recovered from the recipient, and the defense of voluntary payment cannot be sustained; such a payment by a county is a well-recognized exception to the rule attempted to be invoked by the appellant in this case. Roberts v. People, 9 Colo. 458, 13 Pac. 630; Ward v. Town of Barnum, 10 Colo. App. 496, 52 Pac. 412; Cumberland County v. Edwards, 76 Ill. 544. For the reasons stated, the judgment is affirmed. [2] Under this state of the record we think the trial court correct in holding that Clear Creek county was liable for its pro rata (onethird) of the services rendered by the water commissioner in water district No. 9. The fact that none of the services performed were rendered in the county of Clear Creek is no defense to the action, and is fully answered in the case of Board of County Commissioners of Park County v. Locke, 2 Colo. App. 508, 31 Pac. 351. The fact that decreed priorities had not yet been established for these ditches is likewise no defense to this action. This question was thoroughly considered in the case of Chew v. Board of County Commissioners of Fremont County, 18 Colo. App. 162, 70 Pac. 764. Also, the fact that there is less land irrigated in the county of Clear Creek than the other counties in the district, and for that reason it would be inequitable to compel the appellant county to pay its pro rata share of the total, constitutes no part of any defense to the action. The Legislature having seen fit to provide this method of payment, it would be judicial legislation upon the part of the courts to attempt to arrange it otherwise. [3] The second defense urged that the appellee was not lawfully appointed, for the reason that he was not recommended by the county commissioners of Clear Creek county, and that they took no part concerning his official bond, is not properly here for determination. The record discloses that he had been appointed, furnished his official bond, and was performing the duties of the office. Chapter 27 of the Code provides the method of procedure by which the title to an office can be tried. It cannot be thus inquired into in a collateral proceeding. Henderson v. Glynn, 2 Colo. App. 303, 30 Pac. 265; Pueblo County v. Gould, 6 Colo. App. 44, 39 Pac. 895; Montezuma County v. Wheeler, 39 Colo. 207, 89 Pac. 50. [4] The third contention pertains to the amount of the judgment. It is alleged that 1. COUNTIES (§ 47*)-COUNTY COMMISSIONERS -NATURE OF OFFICE-POWERS. County commissioners are constitutional officers, made so by Const. art. 14, § 6, possessing only such powers as are expressly conferred on them acting as a board either by Constitupowers as are reasonably necessary to the proption or statutes, and, in addition, such implied er execution of those expressly conferred. [Ed. Note.-For other cases, see Counties. Cent. Dig. § 55; Dec. Dig. § 47.*] 2. COUNTIES (§ 113*)-COUNTY COMMISSIONERS POWERS CONTRACT TO CONSTRUCT AND SUPPORT A HOSPITAL. County commissioners are not given power by Rev. St. 1908. § 1204, prescribing their authority, nor by any other act, to make a binding engagement conclusive on their successors to forever support and maintain a hospital. [Ed. Note.-For other cases, see Counties. Cent. Dig. § 175; Dec. Dig. § 113.*] 3. CHARITIES (§ 4*) ROBBINS v. HOOVER CONSTRUCTION - CONDI- against them, and they bring error. TIONAL BEQUEST-VALIDITY. 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. § 7; Dec. Dig. § 4.*] 4. CHARITIES (§ 23*)-CHARITABLE GIFT-VA LIDITY. 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 authority 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. [Ed. Note.-For other cases, Cent. Dig. § 43; Dec. Dig. § 23.*] see Charities, versed and remanded. 527 Re C. S. M. M. Rinn, T. A. McHarg, guardian ad litem. 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 widows and orphan children, while sick and State of Colorado, for the comfort of poor Fifty Thousand ($50,000) Dollars. Providing unable to care for themselves, the sum of 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, Chauncy 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 constituting the members of the board of county commissioners of Boulder county, 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 Where a will, after providing legacies to the petition are the present plaintiffs in erwhom they summoned into court to answer certain minors, attempted to create a trust for the erection of a hospital for poor widows and ror, who are minors, to whom, among others, orphans, and provided that, should the trust fail, the bequest was to be divided in the event the money should be divided among the legatees that neither the city of Boulder nor the proportionately, the county court had no jurisdiction to require of the guardian ad litem of county of Boulder should agree to support such minor legatees, in a suit to enforce the and maintain the hospital therein provided trust, that they sign a receipt agreeing not to contest the validity of the will as a condition has been brought up in the record, expressfor. The trial judge in his opinion, which to their receiving their legacies, and such a receipt did not operate as an estoppel against ed grave doubt as to the correctness of his such minors to ask for a construction of the judgment, but believing, as he did, that the will different from that sought by those desir-testator intended to devote the sum of $50,ing the enforcement of the trust. 5. WILLS (§ 212*)-CONSTRUCTION-ESTOPPEL TO CONTEST. Where beneficiaries of an alleged trust instituted proceedings to enforce the same, and to have themselves appointed trustees of a fund which they claimed testator had given to a public charity, and to this suit made certain minor legatees parties defendant, the act of such defendants in suggesting in defense that the trust was void did not constitute a contest of the will within a receipt given by them for their legacies, in which, by their guardian ad litem, they agreed not to contest the will. [Ed. Note. For other cases, see Wills, Cent. Dig. § 519; Dec. Dig. § 212.*] 6. WILLS (§ 697*)-LEGACIES-RECEIPT. [Ed. Note.-For other cases, see Wills, Dec. 000 to a worthy object, finally concluded Dig. § 697.*] that he would construe the clause in quesEn Banc. Error to District Court, Boul-upon appointed plaintiffs as trustees to take tion as creating a charitable use, and thereder County; Harry P. Gamble, Judge. Action by Moses Hoover and others, constituting the Board of County Commissioners of Boulder County, against Earl Harold Robbins and others; W. C. Ewing, intervening. Defendants demurred, and after their demurrers were overruled judgment was entered effect the testator's supposed intention. that this bequest is invalid because its vest- *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |