tent, it only amounts to a mutual agreement that both should watch the trial docket, and each inform the other. The case was on the calendar for trial, and had been for four days awaiting its turn. Counsel must have expected a trial when it was reached. The situation was such as to require vigilance from both, and it appears it was as much the duty of one as the other to obtain and give the information. The most that could be said was that the attorney acted in bad faith and did not inform the other party of a fact that he should equally have informed himself in regard to. The arrangement, if made, was but an oral agreement, liable to be misunderstood by either, in no way obligatory upon the court, and is not shown to have been communicated to the court. Rule No. 23 of the district court is as follows: "No verbal agreement of counsel with each other, with a party, or with an officer of court concerning the progress or management of any matter pending in court will be enforced unless made in open court." Stipulations and agreements require three parties, the court being the third; otherwise it would be impossible to do the business. It was plainly the duty of the court to dispose of the case when reached, either by a trial or continuance for proper cause shown. The case for a new trial made by the affidavits, and they conflicting, was not one to appeal very strongly to a court, or to show that the negligence was not culpable. The court could not be held responsible for the bad faith of counsel, if there was bad faith. We do not think the court proceeded arbitrarily, or abused its discretion, in refusing the motion. The judgment must be affirmed. Affirmed.

(5 Colo. App. 144)

WALSENBURG WATER CO. v. MOORE. (Court of Appeals of Colorado. Oct. 8, 1894.) ACTION ON NOTE-EVIDENCE OF EXECUTION-CORPORATIONS-ELECTION OF PRESIDENT.

1. Where, in an action against a corporation on a note, its execution is denied, the burden of showing the authority by which it was executed is on plaintiff.

2. The election of a president of a corporation by the stockholders at their annual meeting is a nullity.

3. Where, in an action against a corporation on a note, it is shown that the person who signed the note on behalf of the corporation was not an officer thereof, evidence is not admissible to prove that, when the note was made, the corporation was indebted to a person at whose request the note was made payable to plaintiff.

Error to Huerfano county court.

Action by J. B. Moore against the Walsenburg Water Company on a promissory note. Judgment was rendered for plaintiff, and defendant brings error. Reversed.

J. P. Heisler, for plaintiff in error. R. R. Ross and Maupin & Babb, for defendant in

error.

THOMSON, J. The complaint in this case is as follows: "J. B. Moore, Plaintiff, vs. The Walsenburg Water Co., defendant. The plaintiff, by his agent, Max Klein, complains and alleges: (1) That on the 27th day of February, A. D. 1891, at Denver, Colorado, the defendant made and delivered to the plaintiff its promissory note, of which the following is a copy: $1,900. Denver, Feb. 27, 1891. Thirty days after date, we promise to pay to the order of J. B. Moore nineteen hundred dollars, at the Denver National Bank of Denver, with interest at one per cent. per month from date until paid. Value received. The Walsenburg Water Co., by T. F. Martin, President. No. Due

- (2) That defendant has not paid the same, nor any part thereof. Wherefore plaintiff demands judgment against the defendant in the sum of nineteen hundred dollars and interest and costs of suit." The verified answer of the defendant denies the execution by it of the note set out. No indebtedness for which the note was given is stated, nor any facts which would authorize a recovery except upon the instrument itself. If that is void, this action must fail. To make the instrument the note of the company, T. F. Martin must have possessed the requisite authority to execute it, or its execution must have been subsequently ratified by the company. He signed it as president, but the records of the company, which were in evidence, fail to show that he ever was its president, and the only evidence from which it could possibly be assumed that he was such is his own testimony. He testified, on direct examination, that he was elected president at a meeting of the stockholders; and, on cross-examination, that this meeting was the regular annual meeting, in May, 1890, at which there were present himself and Fred O. Roof, another stockholder being represented by proxy. There was no other evidence of his election. There was no proof that he was otherwise authorized, or that his act was ever ratified.

The execution of the instrument by the defendant having been denied upon oath, it devolved upon the plaintiff affirmatively to establish the authority by which it was executed. The only election which stockholders are authorized, by our statute concerning corporations, to hold at an annual meeting, is that of a board of directors, to serve for the ensuing year; and the president must be chosen, not by the stockholders, but by the directors after their own election. An election of president by the stockholders is a nullity, and, the stockholders' election constituting the only title of Martin to the office, he did not become the president of the company. As he had no other authority to execute the note, and his act in so doing was never ratified, the instrument sued on is not the company's note. Some evidence was admitted tending to show an indebtedness of

the company to Alex Levy; that the indebtedness, if it ever had an existence, is still owing to him; and that upon his request, for certain reasons assigned by him at the time, this note for the amount of that indebtedness was made payable to the plaintiff. Under the allegations of the complaint, such evidence was incompetent. If the company owes Levy anything, he can recover it from the company in an action upon the debt in his own name. Moore could not maintain such action, because the indebtedness is not owing to him. But this suit, being upon the note, is not maintainable upon the evidence. The judgment will be reversed. Reversed.

(5 Colo. App. 140)

NEWCOMB v. PROVIDENT FUND SOC. OF NEW YORK CITY.

(Court of Appeals of Colorado. Oct. 8, 1894.) MUTUAL BENEFIT LIFE INSURANCE-DEATH OF AsSURED BEFORE ISSUANCE OF POLICY - LIABILITY OF COMPANY.

1. An application for a mutual life insurance policy, together with the membership fee and first quarterly premium, were received by a mere solicitor, who was not an agent of the company. The application provided that the company should not be liable until it and the membership fee were received by the secretary in New York. The policy provided that it should not be binding until the insured paid the membership fee and premium, and until it was countersigned by the agent of the company. The insured was killed two days before the policy was countersigned and such fee and premium were received by the agent. Held, that the company was not liable.

2. The fact that after the insurer's death the solicitor delivered the policy to his administrator did not render the company liable; it appearing that the agent received the membersaip fee and premium, and countersigned and sent the policy to the solicitor for delivery, in ignorance of the insured's death.

Appeal from district court, La Plata county.

Action by C. F. Newcomb, administrator of the estate of A. K. Nail, deceased, against the Provident Fund Society of New York City, on a mutual life insurance policy. From a judgment for defendant, plaintiff appeals. Affirmed.

Wilson & McCloskey and J. L. Russell, for appellant. Arthur M. Sanders and Miller & Reese, for appellee.

BISSELL, P. J. Newcomb, as the administrator of the decedent, Nail, brought this action against the Provident Trust Society to recover $3,000 on a policy alleged to have been issued by the company during Nail's lifetime. The company was apparently a mutual one, and, in its organization, provided for the collection of fees and assessments, both prior to the issuance of the policy and during its life. Nail died before the policy was actually issued. This is an important consideration, and necessitates an examina

tion of all the matters preceding the delivery of the policy. The application was originally taken by one Jackson, who lived at Durango, and solicited insurance for the defendant company through an arrangement with Aldrich, the company's agent in Denver. Jackson was not the company's representative, and only had power to solicit the insurance, and remit the premiums to the state agent, through whom communication was had with the main office, in New York. The application was signed in June, 1891, when Jackson received from Nail eight dollars and a half on account of his membership fee and the first quarterly premium charged for that amount of insurance on that class of risk. Some question possibly might be made concerning the receipt of the money, but for the fact that the application itself provided that the company should not be liable for any injury or death happening prior to the receipt and acceptance of the application and membership fee by the secretary in New York, and that the society should not be responsible for assessments paid to anybody except certain specified officers, or to an agent delivering a receipt signed by the president of the company. It was established that Jackson was unauthorized to act in the company's behalf with respect to the receipt of assessments. Nail, the insured, was charged with the knowledge of this condition, because it was contained in his application, and he must be assumed to know that he acquired no claim against the company by reason of the payment of the money to Jackson. He received no receipt signed by the president. It was in testimony that the application was forwarded to the agent in Denver, with the amount of the quarterly fee. It is not clear that this money was forwarded by Jackson to Aldrich, the state agent in Denver, with the original application. He states it to be a fact, according to his best recollection, but there are circumstances which cast some doubt upon his memory. It is in evidence that some days after the application had been forwarded to Denver the letter was returned to Jackson, undelivered, who testified that thereupon he returned it, with the money, either to the Denver agent or to the home office, in New York. His recollection is apparently at fault. It is tolerably evident, from the testimony, that the application went from Denver to New York, was acted upon by the officers there, and returned, according to one of its conditions, to the agent in Denver, to be countersigned and delivered to the insured upon the payment of the premium. It is certain that the policy took this course, and that the money did not accompany the application to the home office. When the policy was signed by the officers, it was sent to the agent, to be delivered upon the receipt of the premium. It was not countersigned until the 21st day of August, 1891, at which time the first pre

mium was received by the agent. On that date the agent forwarded it to the solicitor, Jackson, to be delivered. At this time, Nail was dead. He was killed on the 18th of August. On these facts the court instructed the jury to find for the defendant, and entered judgment on the verdict, and therefrom the administrator appeals.

This statement very clearly demonstrates the correctness of the judgment. The existence of a contract entered into between the parties, and binding upon the insurer, must evidently be established, to entitle the administrator to recover upon his policy. It was entirely competent for the company to stipulate that they should not be bound, except upon compliance by the insured with whatever conditions precedent they might see fit to attach to their contract. The company could stipulate that they should not be bound by the policy prior to the time that the applicant for insurance should pay his membership fee, and the first assessment or premium which they might charge for that class of insurance. The policy contained this condition, and the evidence demonstrates that the applicant had not complied with that condition at the time of his death. The stipulation that the policy should be countersigned by the agent of the company prior to the time of its becoming a valid and binding obligation was one which the company clearly had the legal right to make, and is in no sense oppressive or unconscionable; and the completion of the contract with the signature of the agent, during the lifetime of the insured, was essential to the existence of an obligation which could be enforced against the company. Giddings v. Insurance Co., 102 U. S. 108. The insured stated in his application that the company should in no wise be responsible for accidents or injuries which might accrue prior to the receipt of the premium by the company in New York, unless possibly the company would be responsible in case the assessment was paid to one issuing a receipt signed by its president. There is no question concerning the extent and the character of the exception, nor are we called upon to interpret it or determine its scope, since Nail was given no receipt thus signed. He was. then, by the terms of his application, entitled to no insurance from the company until after the payment of the premium. It is very plain that neither the company nor its agent received the premium or membership fee before Nail was killed. Under these circumstances, it cannot be said that a valid contract had been entered into between the parties, which obligated the company to respond in the suit after Nail's death.

No importance whatever can be attached to the fact of the delivery of the policy to the administrator subsequent to Nail's decease. It was done wholly without the knowledge of the company or its authorized agent,

and seems to have been an attempt on the part of the local solicitor at Durango to make the company responsible for the misadventure which had attended the remittance of the money at the time of the original application. The agent in Denver, however, at the time he countersigned the policy, had no knowledge of Nail's death, nor had he received any at the time he sent the policy to Jackson for delivery. Under these circumstances the delivery of the policy to the administrator could not be operative to bind the company, and make that a valid obligation which, at the time the policy was countersigned and the money received, was invalid by the very terms of the application which Nail himself had made in his lifetime.

Some other errors are suggested by the appellant, but it is needless to consider them, since, on the whole case, it is clear that the appellant was not entitled to recover in the suit. The judgment of the court below was right, and it will accordingly be affirmed. Affirmed.

(5 Colo. App. 150) COLORADO CONSOLIDATED LAND & WATER CO. et al. v. HARTMAN. (Court of Appeals of Colorado. Oct. 8, 1894.) MEASURE OF DAMAGES-DESTRUCTION OF CROP. The measure of damages in an action for the destruction of standing crops is their value at the time of destruction.

Appeal from district court, Montezuma county.

Action by George W. Hartman against the Colorado Consolidated Land & Water Company and others for injuries to land and for the destruction of standing crops. Judgment for plaintiff, and defendants appeal. Affirmed.

S. W. Carpenter, for appellants. Chas. A. Johnson and C. W. Blackmer, for appellee.

REED, J. Appellee brought suit against the appellant for injury to land and destruction of crops by water from the ditch of the defendant in the years from 1889 to 1891, both inclusive. The case was tried to a jury, resulting in a verdict for the plaintiff (appellee) of $1,500, judgment upon the verdict, and an appeal to this court. Only one question is relied upon in argument, and necessary to be considered by this court, viz. the proper measure of damage. It is stated in the bill of exceptions as follows: "Certain evidence was offered by plaintiff in support of the allegations in his complaint herein as to the alleged destruction of the growing crops of plaintiff by the wrongful acts of defendant company, to wit, how much per acre the said crops were worth in their condition and stage of growth upon the land at the time of the alleged destruction thereof; that the defendant company, by its attorney,

then and there objected to the admission of said evidence, on the ground that the same was incompetent, and that the proper measure of damages in case of destruction of growing crops is the rental value of the land for the season during which the crops were grown thereon; that the court overruled said objection, and admitted the said evidence; to which ruling of the court said defendant company, by its attorney, then and there duly excepted." In the argument of counsel it is urged, as stated above, that the proper measure of damage was the rental value of the land, not the value of the crop at the time of its destruction. But one authority is cited by counsel in support of his contention, from 1 Sedg, Dam. § 184, under the heading, "Damages for Obstructing the Use of Land," where it is said: "When the owner of land is wrongfully prevented from occupying it, the measure of his damages is the value of the use of the land; that is, its rental value. So, where the plaintiff's farming land was wrongfully overflowed by the defendant, the measure of damages is the use of the land, not the value of the crops that might have been raised on it." Its want of applicability will be apparent when it is seen that this action was not for an eviction, or keeping the owner out of possession, but for the value of growing crops on land in the possession and occupancy of the plaintiff; and in case of keeping the owner out of possession it is said in a subsequent part of the same section: "But since the rent depends upon the nature of the land, that may be shown, and as the net profits realized from the use of it afford the best indication of the value of its use, they may be shown if they can be proved with reasonable certainty." Had counsel turned to section 191 of same volume, he would have found the following under the head of "Injury to Crop," where the author says, after citing Payne v. Steamship Co., 38 La. Ann. 164, and Rice v. Whitmore, 74 Cal. 619, 16 Pac. 501: "In cases such as the last two, the rule, in the light of principle, would seem to be the value of the use of the land, evidence of the average value of the crop of that or other years being admissible." In 1 Suth. Dam. 793, it is said: "To ascertain the value of a growing crop damaged by an overflow of water, it is competent to ask a witness, conversant with the growth of such crops, how much, in his opinion, a given field would produce per acre." See, also, Phillips v. Terry, 5 Abb. Pr. (N. S.) 327. In Lommeland v. Railway Co., 35 Minn. 412, 29 N. W. 119, it was said: "For the destruction of growing crops by a flooding from a railroad ditch, the measure of damages is the value of the crops in the condition they were at the time of the injury." In Seely v. Alden, 61 Pa. St. 302, it was said: "In general, the rule

for the measure of damages in cases of tort may be said to be that which aims at actual compensation for the injury; and whatever ascertains this is proper evidence to be submitted to the jury." See, also, McKnight v. Ratcliff, 44 Pa. St. 168; Douty v. Bird, 60 Pa. St. 48; Forsyth v. Palmer, 14 Pa. St. 98. Upon principle this would seem to be the true rule of compensation,-the value of the crops at the time of their destruction. It will at once be apparent that the rule of the rental value of the land cannot be the true one, it giving no compensation for the preparation of the ground, value of seed, planting, care, and irrigation. The trouble is in arriving at the value of an immature growing crop. If it had an established market value, the task would be an easy one; as it has not, the value and evidence establishing it are more or less speculative, and a crop before maturity is subject to so many possible injuries that great care should be exercised not to give it a prospective or speculative value. But, in order to establish the value at the time of the destruction, courts are compelled to resort to several methods of computation, and either, or all combined, may afford a fair basis. One might be a year's rental value, with the cost of planting and bringing forward the crop until the time of its loss; another what the crop would bring in its immature state at a sale; and a third the proof of the average yield and the market value of crops of same kind planted and cared for in the same manner, less the cost of maturing, harvesting, and marketing. While neither would afford positive proof, they would all seem to be proper, and the only way by which a jury could get the necessary data upon which to base a verdict. The question to be determined by the jury was the value of the crop at the time of the destruction.

The supposed error, and the only one relied upon, was allowing witnesses to testify "how much per acre the said crops were worth, in their condition and stage of growth, upon the land at the time of the alleged destruction thereof." There does not appear to have been any objection to the witnesses for lack of knowledge or competency. No objection that a proper foundation had not been laid. From all that appears, the true value might be arrived at directly, in this way. If such was the case, it would be much more satisfactory than by any other method. The measure of damages adopted by the court was, by the authorities, the correct one, and, as no objection was made to the competency of witnesses to testify directly to the value, it would appear to have been the most satisfactory and direct method of establishing the value. This supposed error being the only one relied upon for reversal, the judgment must be affirmed. Affirmed.

(5 Colo. App. 127)

TABOR v. MILES. (Court of Appeals of Colorado.

Oct. 8, 1894.) APPEAL FROM COUNTY COURT-PROCEDURE-JOINT AND SEVERAL NOTE.

1. Under Mills' Ann. St. § 1089, providing that on appeals from the county to the district court "the proceedings shall be, in all respects, de novo," a judgment in a county court against some of several defendants, and in favor of others, does not merge the claim in the judgment so as to prevent proceedings against all the parties in the district court.

2. One who indorses a note before delivery is a maker, and the obligation becomes joint and several.

Appeal from district court, Arapahoe county.

Action by A. H. Miles against Horace A. W. Tabor and Pierson & Whipple on a promissory note. Judgment for plaintiff, and Tabor appeals. Affirmed.

Carpenter & McBird, for appellant. J. Warner Mills, for appellee.

REED, J. Suit was brought by appellee against appellant and Pierson & Whipple on the note of which the following is a copy: "$1,500. Denver, Colo., March 31, 1888. One year after date, we promise to pay to the order of A. H. Miles fifteen hundred dollars. Interest at one per cent. per month, payable monthly. Value received. Whipple & Pierson, Frank F. Pierson, W. W. Whipple,"indorsed upon the back by appellant. Proceedings were had, resulting in a judgment against Whipple & Pierson, and in favor of appellant. The proceedings appear to have been quite irregular and somewhat peculiar. Judgment was taken against all the parties by default, while a demurrer of appellant was upon file undisposed of. Afterwards judgment vacated against appellant, and one entered in his favor upon demurrer. These facts and a recitation of the proceedings in the county court would not need to be stated, except for contention of counsel, which will be discussed later. An appeal was taken from the judgment of the county court to the district court, where a trial was had, resulting in a judgment against all for the sum of $2,195.50, from which this appeal is prosecuted.

Several errors are assigned, none of which are relied upon in argument, where the only contention is one not covered by any assignment of error. It is, in effect, that the judgment of the county court against Whipple &

Pierson, and in favor of appellant, operated as a release of appellant; that the note was merged in the judgment against Whipple & Pierson, and could not be the basis of a proceeding in the district court. Appeals are allowed from the county court to the district court of the same county from all final judgnents but those of confession. Mills' Ann. St. § 1085. Section 1089, Mills' Ann. St., is as follows: "In all appeals provided for in the foregoing section, the proceedings in the appellate court shall be, in all respects, de novo. Said appellate court shall consider and pass upon all objections to the pleadings and proceedings in the said cause, which may have been made in the county court, and make such orders and render such judgments or decrees as shall be meet and proper, in the same manner as though such cause had been originally begun in said district court; and the defendant, where judgment has been rendered by default, shall have a right to plead any and all defenses which he might have pleaded had the cause been originally brought in the district court. All such causes shall be conducted in the same manner as if originally brought in the district court," etc. The statute is clear and explicit. No construction is necessary. The language is "shall be, in all respects, de novo." See Kiskadden v. Allen, 7 Colo. 208, 3 Pac. 221. All proceedings of the court below are vacated, -held for naught. Such being the case, nothing was res adjudicata, no judgment operating as a merger nor releasing appellant. There was nothing that could be pleaded of proceedings there had that would conclude either party, and nothing transpiring there was pleaded in the district court; hence the contention is without legal force, and should not be considered. The objection is first urged in this court, and need not be regarded. Williams v. Mellor, 12 Colo. 11, 19 Pac. 839; Thornily v. Pierce, 10 Colo. 253, 15 Pac. 335; Barnes v. Beighly, 9 Colo. 478, 12 Pac. 906. But, that being the only contention, we chose to consider it. It is shown by the evidence that the note was indorsed by appellant previous to its delivery; hence he was a maker, and the obligation was joint and several. Mills' Ann. St. § 2528; Civ. Code, §§ 13, 42; Hamill v. Ward, 14 Colo. 277, 23 Pac. 330; Daniels, Neg. Inst. § 1296. The evidence was very brief. No legal defense was interposed or urged upon the trial. The judgment appears proper, and sustained by the evidence, and should be affirmed. Affirmed.