his property is being taken without due process of law, in violation of the provision of the fourteenth amendment. I do not think it is necessary to say any more than I have said. It does not seem to me that under the allegations of the bill, it can be held that there was a lack of due process of law, and I do not think that a citizen of the state can come into the federal courts, and litigate with a citizen of the state any other than a federal question. So I have not considered several questions made by counsel as to supposed infractions of other portions of the constitution.

The special plea to the jurisdiction will be sustained.

SUPREME COURT OF COLORADO.

SMITH V. FAIRCHILD ET AL.

Filed October 1, 1884.

SALE OF REAL ESTATE BY BROKER-COMMISSIONS FOR SALE. A broker, employed by the owner of certain real estate to sell the same at a stated price, if the sale be made within " a short time," is entitled to his commissions upon finding a purchaser within two weeks after the date of his employment, and before the property is withdrawn from the market.

APPEAL from the county court of Arapahoe county. The opinion states the facts.

Harmon & Ellis, for the appellants.

Benedict & Phelps, for the appellee.

STONE, J. No legal question appears to be involved in this case; the judgment seems to be founded on matters of fact, and the assignments of error raise simply a question of the sufficiency of the evidence to support the judgment.

The appellees were ordinary real estate brokers, and as such were authorized by appellant to sell a certain number of town lots at a stipulated price, upon which a commission was to be paid by appellant.

Appellees found a purchaser who agreed to take the lots at the price fixed by appellant and a small sum was paid down to appellees to bind the bargain. Upon applying to appellant for a deed to the lots, he refused to convey saying that the lots had increased in value and he had withdrawn them from market. Suit was brought by the appellees for the amount of their commission and a finding and judgment had in their favor by the court below, for the sum of one hundred dollars, from which judgment this appeal is taken.

Appellant did not dispute the employment of appellees, or that he authorized them to make a sale or find a purchaser at the price stated, nor did he dispute the amount or reasonableness of the commission in case of sale.

The only ground upon which he refused to carry out the sale by making a conveyance, was that the property had increased in value.

This was no valid defense, since he had himself put the price upon the lots at which he authorized them to be sold, and had not definitely limited the time within which they might be sold at such stipulated price.

In his own testimony appellant stated that he authorized them to be placed upon the market by appellees at the price named "only for a short time." Admitting this to be true, the time was not limited to any definite period, and the purchaser in question was found within two weeks from the time appellees where authorized to sell the lots; which time may be regarded as very fairly coming within the definition of a "short time.'

No notice of a change of terms, or of a withdrawal of the property from sale was given to appellees previous to their informing appellant that they had found a purchaser who had agreed to take the lots at the given price and requested a deed therefor.

If at that time the offered price was inadequate, it was the fault of appellant and not of appellees.

We think the judgment is supported by the facts in evidence as disclosed by the record, and it will be accordingly affirmed. Judgment affirmed.

IRWIN ET AL. v. WOOD ET AL.

Filed October 1, 1884.

DEMURRER TO COMPLAINT-MISJOINDER OF DEFENDANTS.-A demurrer to a complaint on the ground of a misjoinder of parties defendant should be disregarded unless it specifies in what the misjoinder consists, and which of the defendants are misjoinded.

JOINDER OF DEFENDANTS SEVERALLY LIABLE FORM OF JUDGMENT.-Under зection 13 of the code of civil procedure several promisors under a written contract, who promise to do certain acts, each for himself and not for the others," may be joined in an action for a breach of such contract. The judgment in such action should be entered against the defendants severally, in proportion to their respective liabilities.

APPEAL from a judgment of the district court for Gunnison county, entered in favor of the defendants. The opinion states the facts. Thomas, McDougal & Thomas, for the appellants.

Belford & Reed, for the appellees.

STONE, J. The point relied upon by appellants for reversal of the judgment is, that the court erred in sustaining the demurrer to the complaint on the ground of misjoinder of the defendants.

The suit was upon a written contract, one clause of which was as follows: "That the said Burchinell, Wood and Clark, parties of the first part (each for himself and not for the others, and in so far as his interest may appear in said claims,) agree to furnish provisions to said Irwin and Jerome, the parties of the second part to this contract," etc.

The complaint was demurred to on the ground (among others) of a misjoinder of parties defendant, and the demurrer was sustained by the court upon that ground expressly. We think this was error.

Section 56 of the code (revision of 1883) provides that a demurrer may be disregarded which does not distinctly specify the grounds. upon which any of the objections to the complaint are taken.

I. In this case the demurrer should have specified in what the misjoinder consisted, which of the parties defendant were misjoined, and why, since if it was on the ground alone that a joint action would not lie, it must be admitted, nevertheless, that under the code practice the action was good against some one of the defendants; at least, if the complaint set out a good cause of action against any one of the defendants, a joint demurrer by all on the ground of misjoinder was bad: Pomeroy's Remedies, Secs. 289, 290, 291.

II. The ground in support of the demurrer, presented in argument, and upon which the court below appears to have sustained it, is, that the contract, which was the foundation of the action, expressed a several liability of the defendants, and that therefore they could not be joined in the same action.

The only authorities cited in support of the ruling of the court upon this point, are those under the practice at common law. This rule of practice has been swept away by the codes of civil procedure in most of the states where the code practice prevails. Section 13 of our own code (revision of 1883) declares that " persons jointly or severally liable upon the same obligations or instrument, including the parties to bills of exchange, and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action at the option of the plaintiff."

The case of Wilde & Co. v. Haycraft et al., 2 Duvall (Ky.) 309, where the contract was a guaranty, in which the defendants each expressly bound himself in a separate liability for a specific amount less than the aggregate sum of the guaranty, is in point. The defendants were all joined in one action upon the contract, and the petition was dismissed in the court below upon a demurrer specifying, among other causes, that a joint suit could not be maintained.

The supreme court reversed the judgment and in passing upon this point, under a provision of the civil code of that state (Ky.), substantially the same as the one quoted from our own, say: “In this case there is but one contract and it is the same contract between the same parties, but several as to its obligations, and neither the language, nor the presumed object of the quoted section of the code can be constructively restricted to a several contract including each separate obligor for the whole amount of their aggregate liabilities. The letter of the section certainly authorizes no such restriction, and the policy of avoiding a vexatious multiplicity of actions for a breach of the same contract would apply equally to every contract made at one and the same time by the same parties severally liable upon it. The joint action, as chosen is, therefore, in our opinion, a proper legal remedy."

That the same construction is given to similar provisions of the codes of procedure of other states, see the following cases: Decker v. Trilling et als., 24 Wis., 610; The State ex rel. etc. v. Roberts, 40

Ind., 452; The People v. Lone et al., 25 Cal., 520; Parker v. Jackson, 16 Barb., 33; Pomeroy's Remedies, sec. 292.

This construction of the provision in question is undoubtedly in accord with the reform spirit and express purpose of the code practice in seeking to avoid the multiplicity of suits under the former practice, wherever the respective rights and liabilities of parties arising out of the same contract might as justly, conveniently and with less expense be determined in one action as in two or more.

In the case at bar, the liabilities of each and all of the parties joined as defendants arise out of the same contract embodied in the one instrument of writing as averred by the complaint, and the latter therefore was not obnoxious to the demurrer on the ground of misjoinder of parties.

III. As the case will be remanded for trial it is not out of place to observe that if the trial should eventuate in a judgment against the defendants, a separate judgment against each found liable would be proper, inasmuch as the liability of each is expressed in the contract to be not only several but differing in extent, proportionate to the respective and different interests of each in the property specified: Civil Code, sec. 199-200 (Rev. '83).

A several judgment is proper, it seems, and may, in some cases, be necessary, whenever a several suit might have been brought: Parker v. Jackson, 16 Barb., 33; Decker v. Trilling, 24 Wis., 610; People v. dwards, 9 Cal., 286.

The judgment is reversed and the cause remanded.

BARTH ET AL. v. JONES ET AL.

Filed October 1, 1884.

LESSOR AND LESSEE-ABANDONMENT OF LEASE-RECOVERY OF AMOUNT. -A lessee, under a contract of lease, by the terms of which possession of the premises is to be given him at a future day, who pays the rent in advance, may recover back the same, if, after demand, the lessor refuses to deliver the possession, and the parties thereupon abandon the lease by mutual consent.

WHEN THE EVIDENCE IS CONFLICTING A VERDICT will not be disturbed.

APPEAL from a judgment of the district court for Arapahoe county. The opinion states the fact.

Harmon & Ellis for the appellants.
Browne & Putnam for the appellees.

BECK, C. J. The appellants, Barth & Bro., on the 8th day of October, 1880, leased to the appellees, Thomas and Robert Jones, for the term of three years, a certain lot and premises in the city of Denver, to be used in establishing and carrying on the grocery business. By the terms of the lease, certain improvements were to be made by the lessors, and possession was to be delivered to the lessees on the first day of November following. Lessees were to

pay two hundred dollars per month as rent for the premises, monthly in advance, and at the time of making the contract paid thereon the sum of two hundred and forty dollars in full for the month of November.

The premises were not ready for occupation at the stipulated time, and the lessees, after demanding possession, and the lessors being unable to give it, hired other premises. This action was brought to recover back the money advanced upon the contract.

The defense is that Barth & Bro. are under no legal obligation to refund the money advanced, since 'they expended a large sum of money in making the stipulated improvements; and that they were prevented from completing them by the time agreed upon, by the acts of Jones & Co., the lessees. Also, that the lease was cancelled by mutual consent of the parties, without any agreement to refund the money advanced.

Upon trial of the issues in the court below, Jones & Co. obtained a verdict and judgment for the sum of two hundred and sixty-six dollars, for the money advanced upon the lease, and interest thereon.

At the conclusion of the plaintiff's testimony on the trial, defendants moved the court for a non-suit, on the ground that the testimony showed a cancellation of the lease by agreement, no part of which required the refunding of any money. This motion was overruled, and the ruling being duly excepted to, now constitutes the first assignment of error.

Upon examination and consideration of the testimony adduced in behalf of the plaintiffs, we think the ruling of the court was correct. This testimony shows that the lease was abandoned by both parties, but it does not show that any agreement was reached concerning the money previously paid by Jones & Co.

The testimony of Robert N. Jones is to the effect that negotiations were abruptly broken off, without arriving at any agreement about the money.

He says (speaking of the attempted negotiation with William Barth): "After he saw his brother * *.* he said they had agreed to cancel the lease. After he agreed to cancel the lease, then said I: 'Mr. Barth, I want my money.' 'No,' said he; 'we can give you no money back,' and I left him there and then, and took a house on Blake street.'

This was the substance of all that passed at the interview. The lease was not produced. No release of the contract in writing was executed then, or any other time. The previous testimony of the witness shows a request on his part to be released from the contract because Barth & Bro. could not deliver possession of the premises, and that William Barth said he would see his brother, and then give him an answer.

Having seen his brother, he gave for answer that they had agreed to cancel the lease. Up to this point nothing appears to have been said by either party about the two hundred and forty dollars pre