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tioned it relates back to the levy of the county courts made at the September terms. The levy should be made by the several county courts at that time for the county, and other known rates, and also for such rate as may be subsequently apportioned by the state officers for current expenses. "When an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it never existed." Potter's Dwar. St. 160. In Newsom v. Greenwood, 4 Or. 119, it was held that a statute repealing or modifying the remedy of a party by suit or action should not be construed to affect suits or actions brought before the repeal or modification, and that when the suit or action had been commenced it followed the principle governing in the exceptional cases.. This being the rule heretofore adopted, and as applied to the case at bar, it would appear that the assessment of the property and levy of all taxes thereon "were past and closed" at the September term of the county courts preceding the repeal of the mortgage tax law on February 10, 1893, thus bringing it within the exception to the general rule. The assessment and levy are equivalent to the commencement of a suit or action, and when the warrant is attached to the tax roll it becomes a judgment which relates back to the levy.

(2) It is a general rule that, unless reserved, the repeal of a special tax law destroys the remedy for enforcing the collection of the tax; but when a tax system is revised, and the former law repealed, the legislative intent is assumed to be of prospective force only, and hence prior valid assessments will not be affected by such repeal. Cooley, Tax'n, 18. The sections repealed provide, in substance, that the mortgage note should not be assessed, but that the mortgage given to secure the debt should, for the purpose of assessment and taxation, be deemed real estate, and assessed to the extent of the debt secured; while section 2735 provided that the tax assessed upon mortgages should be a lien upon the debt and security, and that they might be sold to satisfy the tax. The repeal of the remedy cannot destroy the right. The owner of property owes a duty to the public to bear such a portion of the general burden as the value of his property bears to the value of the whole. Section 2803 of Hill's Code provides that, in case any person shall refuse or neglect to pay the tax imposed on him, the sheriff shall levy the same by distress and sale of his goods and chattels; and section 2816 provides that, if no personal property be found whereon to levy the warrant it must be levied upon any real property of the person against whom the tax is levied or charged. The mortgage tax law was only a part of the general system, and the remedy for the collection of taxes due under it was furnished by sections 2803 and 2816, independent of section 2735. In Belvidere

v. Railroad Co., 34 N. J. Law, 193, it was held in a similar case that the repeal of the statute without a saving clause did not destroy the remedy if the collection of the tax was regulated by other acts, and that when the assessment was made the force of the act authorizing it was exhausted. This case was approved in Maine v. Bank, 68 Me. 515. In the case at bar a remedy was found in section 2735, which was repealed, but this remedy could not be pursued if the taxpayer had any personal property out of which the tax could be made. A remedy was also provided by section 2816 in case no personal property was found, identical with that of section 2735. The remedy provided in section 2735 added nothing to the general system, and hence its repeal could take nothing from it.

(3) The act of February 21, 1893, read in connection with the repealing act, leaves no room for doubt as to the legislative intent in reference to the collection of the tax on mortgages already levied. The legislature of Texas, on June 3, 1873, passed an act which repealed a tax law, without any saving clause. Sess. Laws Tex. 1873, p. 198. A supplemental act was passed on the same day, which provided that the repealing act did not relinquish the right to any taxes theretofore assessed. Id. 206. In Clegg v. State, 42 Tex. 605, it was said in a suit to enforce the tax levied prior to the repeal that "a fair construction of the law under which appellants claim this suit is brought does not deprive the state of the right to demand and collect taxes levied and assessed under former laws, though repealed prior to its institution. Potter's Dwar. St. p. 155, note 5; Sedg. St. & Const. Law, 31, 113. Evidently it was not the intention of the legislature by the passage of the act of June 3, 1873, regulating taxation, to relinquish the right to recover taxes previously levied, but not collected. To obviate all doubt, and guard against controversy, a supplemental act to this effect was passed on the same day. These two contemporaneous acts, relating to the same subject-matter, must be taken and construed as one statute." It is a well-recognized principle of statutory construction that contemporaneous statutes and statutes in pari materia shall be construed together, as though they constituted one act for the purpose of arriving at the intent of the legislature; and where a statute is made in addition to another statute on the same subject, without repealing any part of it, the provisions of both must be construed together. Suth. St. Const. § 288. Applying this rule to the acts of February 10th and 21st, they must be construed together, and this will incorporate into the repealing act of February 10th the saving clause of February 21st, and thus preserve the right to enforce the taxes upon mortgages; and hence the decree of the lower court is affirmed.

(3 Colo. App. 401)

LAWRENCE v. WEIR. (Court of Appeals of Colorado. June 12, 1893.) REAL-ESTATE BROKERS-COMPENSATION-EVI

DENCE.

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In an action by a broker for commissions as for the sale of property on O. street, which defendant conveyed to G., it appeared that plaintiff was defendant's agent for the sale of property on V. street. Plaintiff testified that, while trying to sell to G. the V. street property, he mentioned the other property, and said whose it was. "I drove G. past the O. street property, and pointed it out while I was showing other properties. * ** * I went down in front of the property. I did not afterwards take either of them [G. and another] to" it. G. testified that he negotiated the purchase with defendant, and that plaintiff did not point out the property to him as for sale, nor participate in the transaction. Held, that a nonsuit should have been granted.

Appeal from district court, Arapahoe county.

Action by G. R. Weir against George A. Lawrence. Plaintiff had judgment, and defendant appeals. Reversed.

F. A. Williams, for appellant. Richard Wolfe, for appellee.

REED, J. Appellee (plaintiff below) brought the suit to recover commissions alleged to have been earned, as a real-estate broker in the sale of a residence property on Ogden street, in the city of Denver, owned by appellant, (defendant,) and purchased by F. C. Goudy, Esq. Defendant was the owner of two residence properties, one new, upon Venice street, and the other, the one sold, occupied by himself and family; placed them for sale with one F. Morey, a real-estate broker, with whom plaintiff was connected in some way, or operating. After the sale of the Ogden street property, Morey assigned his claim for commissions to appellee, who instituted the suit. The case was tried to a jury, resulting in a verdict for the plaintiff for $280. Judgment was entered upon the verdict, and an appeal taken to this court.

Numerous errors are assigned,-several upon the admission and rejection of evidence, one upon the refusal of the court to sustain a motion for a nonsuit, several to instructions given and refused, and a general one, that the judgment was against the law and the evidence. Most of them will be disregarded. A nonsuit should have been granted. There was an absolute failure in the proof of the plaintiff to make a case within the law governing such transactions, and the verdict was so clearly against an overwhelming weight of testimony that, if not willfully wrong, it could only have resulted from misapprehension or mistake of the law. The law in this class of cases is well settledFirst, before the broker can be said to have earned his commission, he must produce a purchaser who is ready, willing, and able to purchase the property upon the terms and at the price designated by the principal; second, the broker must be the efficient agent

or procuring cause of the sale. He must find the purchaser, and the sale must proceed from his efforts acting as broker. Babcock v. Merritt, 1 Colo. App. 84, 27 Pac. Rep. 882; Hungerford v. Hicks, 39 Conn. 259; Tombs v. Alexander, 101 Mass. 255; Barnard v. Monnot, *42 N. Y. 203; Rees v. Spruance, 45 Ill. 308; McClune v. Cain, *41 N. Y. 203; Lloyd v. Matthews, 51 N. Y. 124; Lyon v. Mitchell, 36 N. Y. 235; Briggs v. Rowe, *43 N. Y. 424; Murray v. Currie, 7 Car. & P. 584; Wilkinson v. Martin, 8 Car. & P. 5.

To apply the law, and make the opinion intelligible, an examination and synopsis of the evidence is necessary. One fact is well established, that appellee and Goudy were negotiating for the sale and purchase of the Venice street property, which would have been consummated but for a stable, considered a nuisance, on land adjoining, which the defendant could not get removed, and the purchase was abandoned. During the negotiations, defendant and Goudy had not met. Defendant was represented by the plaintiff. In regard to the Ogden street property, finally purchased, plaintiff testified that, while negotiations were going on in regard to the Venice street property, "I mentioned the other property to them, [Goudy and Cloud,] and on the way home pointed out to them the Ogden street property. I don't know that, in pointing it out, I said whose it was. * I drove Mr. Goudy past the Ogden street property at first, * and pointed

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it out while I was showing other properties to Mr. Goudy." Again: "I say Cloud and Goudy went out with me riding, to look at some property, and I pointed out this property to them on the way, riding in the buggy on Ogden street. I went down in front of the property. I did not afterwards take either of them to the property." This is all of the plaintiff's testimony directly connecting him with the transaction. He never informed his alleged principal that he had a possible purchaser; never gave Goudy the name of the owner of the property; never brought the parties together, nor gave a price, nor showed the property. His only claim is that, in company with Goudy and Cloud, he drove by the property, and from the street pointed it out as being for sale, and this was snown by Goudy and Cloud to have been a mistake. Considerable evidence by Morey and plaintiff was admitted in regard to negotiations with Cloud, who was assumed to be the agent of Goudy, which was denied by Cloud and Goudy. It is not important to determine which is correct. No agency of Cloud had been established, and the fact was he was not, at the time of the alleged interviews, the agent of Goudy to buy, but was trying to find some suitable property to sell to him, in the hopes of making a commission from the owner. Consequently, the testimony in regard to interviews with Cloud, without establishing an agency, was improperly admitted. Nearly all the testimony

given by Morey was inadmissible. It was in regard to his conversations with the plaintiff, his own agent, and Cloud, the assumed agent of Goudy, but nothing as to the defendant or Goudy and the sale of the Ogden street property. Goudy was called by the plaintiff; was clearly a disinterested witness. His testimony, by which plaintiff was bound, should have been conclusive of the whole case. He minutely detailed the entire transaction from first to last, showing that the plaintiff in no way participated in the transaction; that plaintiff never mentioned the property as being for sale; that plaintiff did not drive through the street even, and point it out to him, in fact, did not drive into Ogden street at all; and in this he was corroborated by Cloud, who, plaintiff alleged, was with them on the occasion. Goudy narrated the circumstances under which he first met the defendant, made his acquaintance, and learned of the Ogden street property from him. Goudy was anxious to buy the Venice street property, if the stable nuisance could be abated. After some three weeks' negotiation with plaintiff, without getting anything definite in regard to the removal of the stable, he stopped at the property on Venice street, and found Mrs. Lawrence, wife of the defendant, preparing the house for occupancy. With a view, if possible, of concluding a purchase, he asked her where Mr. Lawrence (defendant) could be found, and was directed to the Ogden street property, where he found him. It was the first time they had met, or that he (Goudy) had any knowledge whatever of the property. The house was torn up for modern improvements, and defendant informed him, when they were completed, the property would be for sale. A day or two after, Mr. and Mrs. Goudy examined the house, and got the proposed price, after the improvements were completed. The negotiations between defendant and Goudy commenced on the basis of the defendant completing a portion of the improvements, and Goudy assuming the balance. There was a difference in regard to the price. Goudy, who was going away, employed Cloud, giving him a certain amount, provided he succeeded in getting the property at a certain price. Cloud met defendant, and, after two or three interviews, the price was. made satisfactory, and on Goudy's return, about three days after, the purchase was closed. This was the only agency of Cloud for Goudy. This, it will be remembered, was the evidence of plaintiff's witness, showing conclusively no participation of the plaintiff. This was supplemented and corroborated in every important particular by the defendant and by Cloud, who were called for the defense.

Taking the case as made by plaintiff alone, it will at once be seen that it did not comply with the requirements of the law, and, when even that was destroyed by his own witness Goudy, it is apparent that the court erred in refusing the motion for a nonsuit.

The verdict of the jury was not only unwarranted by the evidence, but directly against it. There was no conflict in the legal acceptation of the term; the only conflict was between the plaintiff and his own witness Goudy, whose evidence was destructive of his case.

It is not necessary to review. the instructions. They were evidently-some of them, at least-utterly disregarded by the jury, and for that reason the verdict should have been set aside. Suits of this character, having no legal foundation, or at least. very questionable in character, have become quite frequent,-far too frequent. The rules of law are plain and simple. "The broker must be the efficient agent or procuring cause of the sale. The means employed by him and his efforts must result in the sale. He must find the purchaser, and the sale must proceed from his efforts acting as broker." These facts, legally established by competent evidence, entitle the broker to his commission, and the courts will aid in its recovery, but nothing short of this will suffice. It opens up too broad a field for the practice of fraud and the levying of unwarranted tribute. The law in this class of cases has been strained to its utmost tension, and juries go further than courts. Judgments have been obtained on the most shadowy grounds of supposed intervention by the broker. If the broker honestly earns his fee, he should have it, but the property owner seems to be the party needing protection.

In this case the broker employed was Mr. Morey. No contract was made with the plaintiff. That the claim was not prosecuted by Morey, but assigned to plaintiff, is a circumstance that should not pass unnoticed. The judgment will be reversed, and cause remanded.

(3 Colo. App. 392)

MEYERS v. HART. (Court of Appeals of Colorado. June 12, 1893.) NONSUIT-WHEN DENIED-TRIAL-SPECIAL FIND

INGS.

1. In replevin, defendants, after denying all the allegations in the complaint, as a second defense, set up a settlement and full payment. To these allegations plaintiff tendered issue by replication, and evidence thereon was received. Held, that refusing to grant a nonsuit and a trial of the issues presented by the second defense was proper, though there was no evidence in support of the original complaint.

2. Under Civil Code, § 181, providing that, "in an action for the recovery of money only or specific property, the jury, in their discretion, may render a general or special verdict," where the pleadings in an action in replevin only raise issues as for the recovery of money the court has no power to order special findings.

Error to district court, La Plata county. Action in replevin by Thomas B. Hart against A. C. Meyers and others. Plaintiff had judgment, and defendant Meyers brings error. Affirmed.

The other facts fully appear in the following statement by REED, J.:

In August, 1885, plaintiff instituted suit against defendants, A. C. Meyers, George E. West, and Frank H. West, in replevin, alleging that in October, 1880, he was the owner of 450 head of cattle and 16 head of horses, and that in November, 1880, the defendants appropriated the property, and converted the same to their own use, praying judgment for $15,000. Defendants Meyers and Frank H. West answered, generally denying the allegations in the complaint, and specifically, by second answer, alleging that in the fall of 1880 the plaintiff was indebted to sundry persons to the amount of $10,000; that to secure the sum of $7,500 of such indebtedness, on the 8th day of September, 1880, he made and delivered a chattel mortgage on a lot of cattle then in La Plata county to one John H. Werkheiser, payable on or before October 10, 1880; that at maturity plaintiff was not able to pay the debt; that about December 1, 1880, plaintiff and defendants entered into an agreement whereby plaintiff sold, transferred, and turned over to the defendants the stock covered by the chattel mortgage to Werkheiser, and all other cattle and horses on the range owned by plaintiff, and executed a bill of sale in writing; that the defendants on their part agreed with the plaintiff that they would assume and pay the indebtedness due to Werkheiser; that the cattle and horses alleged in the complaint to have been converted to the use of the defendants were the cattle and horses covered by the chattel mortgage, and solu and transferred to the defendants by the bill of sale, and that such stock was all that came into the possession of the defendants; that it was further agreed that defendants should sell any or all of the cattle and horses if they should see fit to do so, pay off the mortgage debt, pay themselves for their trouble, and all expenses of herding and caring for the stock, and other necessary expenses; that, in pursuance of such agreement, plaintiff denvered the possession to the defendants of all cattle and horses he owned on the range, the number unknown, but to be ascertained when the stock was gathered; that, in pursuance of such agreement, defendants paid off and discharged the Werkheiser mortgage, and the cost of keeping and gathering the cattle, and all other incidental expenses and charges; that in October, 1882, at the town of Durango, they had a full and complete settlement of all matters between them pertaining to the stock; that in such settlement the defendants returned and delivered to the plaintiff, on the respective ranges, all the stock not sold or disposed of by them, which was received and accepted by the plaintiff; at the same time an account was taken and stated between the plaintiff and defendants of all matters in difference between them; that, upon such statement and accounting, a balance was found due

the plaintiff, for which they turned over and delivered to the plaintiff two horses, which were received by the plaintiff in full satisfaction and discharge of the balance so found due. A replication was filed, denying each allegation in the answer. George E. West filed a separate answer, disclaiming all interest and participation in the transactions as a principal, averring that the only action he ever took in the premises, and the only connection he ever had with it, was as an employe of Meyers and Frank H. West, and as their agent. On the issues so nade, the case was tried to a jury. At the close of plaintiff's testimony, a motion for a nonsuit was made, which was overruled by the court, and an exception taken. Α large number of errors are assigned, the first five being to the admission and rejection of evidence. The court gave to the jury, upon its own motion, 10 instructions, on each of which errors were assigned. The refusal of the court to give four instructions prayed by the defendants is assigned as error. was also assigned as error that the court modified three instructions prayed by the defendants. Counsel for the defendants asked the court to propound to the jury, for special findings and answers, a list of specific questions, which were refused by the court, and exception taken. The jury found for the plaintiff, as against Meyers and Frank H. West, in the sum of $800, and as to George E. West the finding was for the defendant. Meyers and Frank West moved the court to set aside the verdict, and for a new trial, which was denied. Judgment entered upon the verdict, and an appeal taken by A. C. Meyers to this court.

It

Russell & McCloskey, for plaintiff in error. Adair Wilson and Thompson & Ingersoll, for defendant in error.

REED, J., (after stating the facts.) This case is rather peculiar. It started in as an action of replevin, and came out as a money demand for money received by the defendants to the use of the plaintiff, and a settlement of accounts. But this is only one of its peculiarities; there are several others. Defendants' counsel, at the close of plaintiff's testimony, made a motion for a nonsuit, which was overruled. This is assigned for error, and most of the argument is devoted to the discussion of this assignment, contending that the suit, as brought in replevin, was in no way sustained by the evidence. The position is correct. There was no evidence of an illegal taking or an illegal conversion. Had the defendants been content to traverse the allegations in the complaint, the contention might have prevailed, and the refusal to grant a nonsuit be held erroneous; but, after denying all the allegations in the complaint, they interpose what they call a "second defense," in which the true nature of the transaction is disclosed, and setting up a settlement at a

certain date in which all the matters were adjusted, and payment and full satisfaction. To this a replication was filed, and new issues tendered by the defendants were formed. These issues were tried, and the identity of the original action was lost. This being the case, it was not error to refuse the nonsuit and try the issues made. That it was rather a phenomenal departure and transformation must be conceded.

One of the very few facts satisfactorily established by the evidence was that the defendant in error was greatly in debt, perhaps in excess of his assets and ability to pay; that, to secure to Werkheiser $7,500 due him, he had made a chattel mortgage of his stock on the range, which was about to mature, and, being unable to meet it, he made the arrangement whereby he conveyed, by bills of sale, to plaintiff in error and his partner, West, the cattle, horses, and other property, and gave a power of attorney also; and they went into possession, at least constructive, of the property. They were to discharge the chattel mortgage, care for, herd, drive, and dispose of the stock, etc.; and, although upon the trial it was attempted to be shown that the sale was absolute, the answer of the defendants, attempted settlement, and various payments of money made from time to time to the plaintiff, and the delivery of certain of the property, establish beyond controversy that the parties were not bona fide purchasers, but trustees or agents, who, after paying the designated claims and themselves for care and disbursements, were to pay over the surplus to Hart. For two years following the transaction, the defendant Hart gave no attention whatever to the stock. It was then the attempted settlement occurred. The plaintiff in error and his partner, West, attempted to account for all the property converted by them, and reconveyed the supposed remnant remaining on the range, but no remnant was found. Matters remained in this condition until 1885, when this suit was brought. The evidence was very vague and unsatisfactory. At the time of the transfer, Hart had no knowledge of the number, classification, or kind of stock he was selling, nor did he at any subsequent time have any means of knowing the number at the time of the transfer. An attempt was made by plaintiff upon the trial to furnish data by which the jury could arrive at an approximate of the number of cattle, by showing the number he had turned out long before upon the range, and by some guesses of what the natural increase should be. Nothing could be more indefinite or unsatisfactory. The different adverse agencies-stealing, straying, and starving-might leave the herd, after two or three years, less in number than the original stock. It, of course, was to the interest of the plaintiff to make the

herd as large as possible, while the defendants, having to account for it, were influenced to make it small as possible. Much of the evidence of both parties was hardly admissible, but was probably allowed by the court through necessity, being the best attainable. I am at a loss to know how the jury found any data upon which to base a verdict. It must have been from the concessions of defendants and their employes as to the amount and value of the property disposed of, and this, perhaps, was sufficient. The most that can be said of all the evidence in the case is that it furnished the jury a basis from which they could deduce conclusions. The errors assigned upon the admission and rejection of evidence are not relied upon in argument, and an examination shows that they were not serious, and that they were nearly evenly balanced. A strict application of the rules of evidence would so emasculate the case as to leave very little.

Numerous errors are assigned upon the instructions given and refused, but they are not urged in argument, nor any attempt made to show wherein they were faulty. Notwithstanding this, we have carefully examined the whole mass, given and refused, and find no serious error. The charge given by the court upon its motion, taken as a whole, seems to be eminently fair, and the law controlling the case fairly stated. The modifications of those given upon the prayer of defendants were proper and necessary. Those refused were embraced in the charge by the court.

It is urged that the judge erred in declining to submit to the jury a long series of questions for special findings. This contention cannot prevail. Upon the issues made by the answer and replication, which were the only issues tried, the answers to the questions proposed, with two exceptions, could have no bearing whatever, being directed to the supposed illegal conversion of the property, a position abandoned or ig nored at the outset. The exceptions were the questions: "Was there a final settlement between plaintiff and defendants?" And "was George E. West a party to the contract?" The first was fully answered by the general verdict, and the second by a verdict in his favor. In section 181, Civil Code, it is provided: "In an action for the recovery of money only or specific property, the jury, in their discretion, may render a general or special verdict." "In all other cases, the court may direct the jury to find a special verdict in writing," etc. In the case this subsequently became, it was discretionary with the jury. The court had no power to order special findings. See Thompson v. Gregor, 11 Colo. 534, 19 Pac. Rep. 461. The judgment of the district court will be affirmed.

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