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for appellants. This judgment was reversed Grande M. Co., 15 Colo. 499, 23 Pac. 325, 22 by the court of appeals in 18 Colo. App. 353, Am. St. Rep. 433: "The sale of one lot of 71 Pac. 885. The cause was again tried and mining machinery is not doing business withthe trial court directed a verdict in favor in the state." The statute of 1877, being secof plaintiffs. At the close of the testimony, tion 499, Dills' Ann. St., provides that: "Forthe defendants asked to amend their answer eign corporations shall before they are auby adding the following: "That the plaintiff thorized or permitted to do any business in company are estopped from claiming any this state, make and file a certificate," etc. title to the property levied upon by the de- The law of 1897 provides that "no such corfendant Craig for the reason that they held porations * * * shall have or exercise themselves out as being the absolute owners any corporate powers or be permitted to do of the said property and by said open and business in this state until the said fee shall public representation led people, and partic- have been paid.” It has been repeatedly held ularly the defendants herein, to give them that the statute of 1897 did not prohibit a the credit which they received, because of corporation from suing to protect its property such open and public administration of own- or other rights. Utley et al. v. Clark-Gardner ership, to wit: John A. Leschen, Henry Lode M. Co., 4 Colo. 369; Gates Iron Works Leschen, Isaac O. Sutphine, and J. B. Bell.” Co. v. Cohen, 7 Colo. App. 341, 43 Pac. 667. The court denied this application, and its ac- See, also: N. W. Mutual Life Ins. Co. v. tion was assigned as error. Defendants then Overholt, 4 Dill. (U. S.) 287, Fed. Cas. No. offered to prove that John Leschen, Henry 10,338; Cooper Mfg. Co. v. Ferguson, 113 Leschen, Isaac 0. Sutphine, and J. B. Bell U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137; held themselves out to the world as being the Fritts v. Palmier, 132 U. S. 282, 10 Sup. Ct. owners of the property upon which defend- 93, 33 L. Ed. 317. There is nothing in the ants made the levy. This offer was refused, act which prohibits foreign corporations from and error is assigned to the court's action in acquiring personal property in the state. this respect. The court did not err in ei- Having acquired it, they have the right to ther particular.

protect it from unlawful interference. If It was determined by the court of appeals this were not true, evil disposed persons that testimony offered for the purpose of might appropriate such property to their own showing that the plaintiff corporation was use without fear of punishment. estopped-and such was the object of the The court refused to permit defendants to proof offered in this case-could not be ad- prove the price for which the property was mitted in the absence of a plea. Defendants, sold at the constable's sale, and instructed of course, knew of the ruling of the court of the jury that the value of the property in appeals before this second trial and if they controversy was $2,500. This is assigned as desired to interpose such a plea, application error. Evidence introduced as to the value should have been made to amend the answer of the property is overwhelming to the effect previous to the trial and not at the close of that it was in excess of $2,500. The allegathe testimony.

tion in the complaint is that the property was At the time this action was commenced the of the value of $2,500. This allegation was law provided that foreign corporations shall not denied in the answer. No person testified not be "permitted to do any business in this that the property was worth less than $2,500. state" until the fee for filing the articles of Defendants having failed to deny that the ncorporation shall have been paid. Session property was worth less than $2,500, and the Laws 1897, p. 157, c. 51. Plaintiff was a proof showing that it was worth more than Missouri corporation. It had not paid the that, the court was justified in instructing the fee, and objection was made to the introduc- jury as to its value. Defendants cannot be tion of the articles of incorporation because heard to complain of not being permitted to it had failed to comply with the statute. prove that which they did not allege, or to This matter was not raised by the pleadings, disprove that which by their silence they adDefendant's answer did not aver that the cor- mitted. It is said by defendants that, while poration had failed to comply with the law. under the pleadings the question of value was There is no proof that the corporation did not at issue, yet the parties had treated it as any business in this state other than the pur- one of the issues to be tried, and to have chase of the mining machinery involved in submitted evidence upon it without objecthis action. The Supreme Court of the Unit- tion, and have thereby waived all objections ed States in Cooper Mfg. Co. v. Ferguson, 113 to the form of the answer. Because plainU. S. 734, 5 Sup. Ct. 741, 28 L. Ed. 1137, in tiffs introduced testimony as to the value construing a similar statute says: “Reason- which was not in issue, without objection upably construed, the Constitution and statute on the part of defendants, this would not of Colorado probibit, not the doing of a single give the right to defendants to introduce act of business in the state, but the carrying immaterial or incompetent evidence. on of business by foreign corporations with- This disposes of the alleged errors argued out filing a certificate and the appointment by defendants in their brief, and in our opinof an agent as required by the statute.” We ion the contentions of defendants are not. held in Colorado Iron Works Co. v. Sierra meritorious. We are unable to see wherein. the court erred in the trial or in its instruc- collection of the note, or the principal of it; tions to the jury.

that they would look after the collection of The judgment will therefore be affirmed. the note when it became due and pay me tho Affirmed.

interest when it became due"; and that the

same statement was substantially repeated The CHIEF JUSTICE and GODDARD, J., several times thereafter prior to the maturi. concur.

ty of the notes. A motion to strike out all of this testimony interposed by defendant's

counsel 138 Colo. 325)

was overruled, and an exception


There is evidence in the record to the (Supreme Court of Colorado. Dec. 3, 1906.)

effect that Torbert & Fowler were conducting 1. EVIDENCE-PAROL EVIDENCE.

a chattel loan and business chance busiThe legal effect of a blank indorsement on a note cannot be varied by parol.

ness in the city of Denver; that the notes [Ed. Note. For cases in point, see Cent. Dig.

upon which this suit was brought were invol. 20, Evidence, $$ 1807-1812.]

dorsed by Mr. Fowler in the name of Tor2. BILLS AND NOTES-PRESENTMENT AND PRO- bert & Fowler at the time they were deliverTEST--WAIVER.

ed to appellee's agent; that the firm of Under Acts 1897, pp. 227, 232, c. 64, $$

Torbert & Fowler managed and conducted 82, 109, in relation to negotiable instruments, providing that presentment for payment and

the entire business for appellee, collecting notice of dishonor may be expressly or impliedly and paying over to her the installments of waived, they may be waived by acts and declara- interest as they fell due and a portion of tions of the indorser calculated to mislead the holder, or to induce him to forbear taking neces

the principal of one of the notes, which sary steps to charge the indorser.

seems to have been realized from the foreclo[Ed. Note.-For cases in point, see Cent. Dig.

sure of a chattel mortgage given to secure vol. 7, Bills and Notes, $ 1203.]

the note upon which a partial payment was Appeal from District Court, District Court, Arapahoe

made. In short, the evidence tends to prove

that Torbert & Fowler were acting as the County; Booth M. Malone, Judge. Action by Edna Montague against W. R.

agents of appellee in the matter. Appellant Torbert. From a judgment in favor of plain

did not introduce any evidence. The judgtiff, defendant appeals. Affirmed.

ment of the court, set forth in full in the

abstract, conclusively shows that it was basHenry Howard, Jr., for appellant. Lucius

ed, in part at least, upon the testimony of W. Hoyt and C. F. Miller, for appellee.

the witness as to a parol agreement made

contemporaneously with the indorsement of MAXWELL, J. A trial to the court be- the notes to appellee. It is settled in this low, without a jury, resulted in a judgment state that the legal effect of a blank indorseagainst appellant as indorser upon three ment, which was the indorsement upon the promissory notes. It is conceded that there

notes sued upon in this action, cannot be was no presentment of the notes for pay- varied by parol. Martin V. Cole, 3 Colo. ment, as required by section 70, p. 225, and 113; Dunn v. Ghost, •5 Colo. 134; Doom v. no notice of dishonor, as required by section Sherwin, 20 Colo. 234, 38 Pac. 56. This 89, C, 64, p. 228, of the Acts of 1897, "Nego- being the rule, all testimony as to a parol tiable Instruments” (3 Mills' Ann. St. Rev. agreement between the indorser and the inSupp. 88 245m, 247d). But it is claimed that

dorsee contemporaneous with the indorsethere was a waiver of presentment and no- ment of the note sued upon was incompetent, tice of dishonor under sections 82 and 103 of and should have been rejected. the above statute, which are as follows:

It is insisted by appellee that there is suf"Sec. 82. Presentment for payment is dis- ficient evidence in the record, exclusive of pensed with: * * *

(3) By waiver of

the incompetent testimony above referred to, presentment express or implied."

to support the finding of the court to the "Sec. 109. Notice of dishonor may be effect that there was a waiver of presentwaived, either before the time of giving no- ment for payment and notice of dishonor. tice has arrived, or after the omission to As seen above, by sections 82 and 109 of the give due notice, and the waiver may be ex- negotiable instrument statute presentment press or implied."

for payment and notice of dishonor may be Over defendant's objection plaintiff's hus- waived, and the waiver may be express or band, who was acting as her agent in the implied. matter, was allowed to testify, in substance, Appellant concedes this to be the law, but that at the time the notes were indorsed and insists that the testimony relied upon, which delivered to witness by Mr. Fowler, of the is quoted from the abstract, supra, does not firm of Torbert & Fowler, of which firm ap- prove a waiver. The findings of the court

. pellant was a member, Mr. Fowler said, were as follows: "I am compelled to find, quoting from the abstract of the record : from the evidence in the case, that the evi"That they [meaning Torbert & Fowler] dence discloses the fact that the conduct and would be responsible for the interest and promises and manner of transacting the busithe principal when it becomes due; that I ness by the firm, on the part of Mr. Fowler, would have nothing to do whatever with the at that time misled and caused the plaintiff to rely upon those promises and upon that | 8 L. Ed. 687, the United States Supreme course of conduct, to the extent that she Court, according to the headnote, held: left the matter entirely to the firm of Torbert "Whether certain declarations by the indors& Fowler to attend to the collection and er of a note amounted to a waiver of detake charge of the matter, and that the evi- mand on the maker and notice to the defenddence discloses they got their pay for it ant, or to a new promise in consideration of and got their commission on this matter, forbearance, are questions of fact for the and undertook the responsibility of doing it, jury, under instructions from the court, not and that was the cause, under the evidence mere questions of law." Declarations inat least, for the failure on the part of the termixed with acts and conduct, as in this plaintiff to present these notes and give any case, seem to us to raise a question of fact further notice of dishonor." The authorities

The authorities to be determined by the court or jury. So are: "Any act, course of conduct, or lan- the rule is stated by Daniel, 1103, and guage of the drawer or indorser calculated Randolph, $ 1383, quoted above. The court to induce the holder not to make demand or below found this fact against the appellant, protest or give notice, or to put him off his and we do not feel at liberty to disturb it. guard, or any agreement by the parties to In view of all the circumstances surroundthat effect, will dispense with the necessity ing this case, as disclosed by the transcript of taking these steps, as against any party of the evidence, which has been read with so dealing with the holder.” Daniel on Ne- great' care, the judgment will be affirmed. gotiable Instruments, $ 1103. “Waiver may Affirmed. be implied from the actions of the drawer or indorser; it being a question of fact for GABBERT, C. J., and GUNTER, J., conthe jury whether such acts amount to a cur. waiver. Any act which puts the holder off his guard and so induces him to neglect proper demand or notice is a waiver.” Randolph

(38 Colo. 148) on Commercial Paper, § 1383. In Bryant v.

LAMPMAN et al. v. BUMP et al. Wilcox, 49 Cal. 47, it is said: “But the court

(Supreme Court of Colorado. Dec. 3, 1906.) finds that immediately before the maturity

APPEAL-DISMISSAL-DEFECTS IN ABSTRACT OF of the note the defendant told the plaintiff

RECORD. 'to give himself no uneasiness in regard to

Where an appellant failed to comply with the payment of the note; that it would be the rules in the preparation of the abstract of paid at maturity; that he was collecting

the record, and on a motion to dismiss appellant

was given time to amend the errors, which he money for defendant, Wilcox [the maker of

failed to do, the appeal will be dismissed. the note], and that he, Feder, would see )

[Ed. Note.For cases in point, see Cent. Dig. that the note was paid. This promise vol. 3, Appeal and Error, $ 3126.] amounted to a waiver of demand and no

Appeal from District Court, Teller County ; tice." Parsons states the law on this sub

Chas. C. Ho!brook, Judge. ject thus: “Demand and notice may be waived by an act of the indorser or drawer

Action between Oscar Lampman and others

and H. A. Bump and others, and from the calculated to put the holder off his guard, and prevent him from treating the note as

judgment the former appealed. Dismissed. he would otherwise have done." 1 Parsons Frank J. Hangs, for appellants. James J. on Notes & Bills, 582. On this subject Ed- McFeeley, for appellees. wards says (section 848): "And any conduct on the part of the drawer or indorser cal

STEELE, J. Judgment was rendered against culated to, and actually inducing the holder

the appellants in the district court of Teller to, onit serving him with a regular notice,

county. They appealed to the court of apwill have the same effect.” That is, the

peals. In that court appellees moved to dissame effect as an agreement made by the

miss the appeal, upon the ground that the drawer and indorser waiving notice. See,

appellants, in the preparation of the abstract also, Boyd v. Bank of Toledo, 32 Ohio St. 526, 30 Am. Rep. 624; Marshall v. Mitchell,

of record, had not complied with the rules

of that court. The court of appeals denied 35 Me. 21, 58 Am. Dec. 697; Bruce v. Lytle,

the motion to dismiss, and at the same time 13 Barb. (N. Y.) 163.

ordered "that appellants have leave to amend The question to be determined is whether, upon a fair construction of the language used

the errors in the printed abstract within

thirty days.” The 30 days having expired, by Fowler, his conduct in relation to the

and the appellants having failed to correct the matters in controversy, and his acts as agent of appellee, was calculated to mislead

abstract of record, the appeal must be dis

missed. appellee, to put her off her guard, and to induce her to forbear taking the necessary steps to charge appellant as indorser. In The CHIEF JUSTICE and CAMPBELL, J., Union Bank v. Magruder, 7 Pet. (U. S.) 287, concur.

(38 Colo. 330)

he will conduct all his work in miner-like MACON et al. v. TROWBRIDGE.

fashion, and in a manner conformable to

good and economical mining, and so as to (Supreme Court of Colorado. Dec. 3, 1906.)

take out the greatest amount of ore possi1. MINES – LEASES - CONSTRUCTION-ROYAL

ble, but always with due regard to the fuTIES. Where the lease of a mine for royalties

ture development and preservation of the bound the lessee to work and develop the prem- mine as a workable mine, and the special ises in a miner-like fashion, and in a manner covenants hereinafter reserved. Third. Said conformable to good and economical mining, and

Charles W. Ellis shall work, develop, and so as to take out the greatest amount of ore possible, and to do a certain amount of work

mine the said premises steadily and continin each month, with the provision that failure uously from the date of this lease, and any to do so would be a violation of the covenants failure on his part to do at least ten shifts of the lease, it was not optional whether he would comply with the requirements as to work

of work in each calendar month, undering and developing, so that his failure to comply

ground, in and for the development of the merely entitled the lessor to avail himself of said premises, will be 'a violation of this the opportunity to forfeit the lease, but it im

covenant. * * Eighth. The said Charles posed on the lessee the obligation to work the

W. Ellis * * * mine in the manner specified, or to respond in

covenants and agrees to damages for failure to do so.

pay, on or before the 15th day of each calen2. SAME-DAMAGES.

dar month, as royalty on all ores extracted The amount of recovery under such lease, form the said premises during the preceding if any, would depend on the amount of ore that calendar month, as follows" (a graded royalcould have been mined if reasonable diligence had been exercised.

ty based upon the value of the ore extracted).

It is further averred that Ellis was the gen3. SAME-PLEADING. In an action against the lessor of a mine,

eral manager of the Bassick Gold Mining an answer stated that by the lease plaintiff Company, the then owners of the Maine agreed to work the mine in a manner conform- mine, which adjoined the Augusta mine, and able to economical mining, and so as to take

from which drifts and tunnels extended inout the greatest amount of ore possible; that he would work steadily and continuously, and

to the Augusta mine, and was a large stockdo a certain amount each month; that he holder therein, and that he had the right agreed on a certain date to pay a graded royalty,

and authority to use the shafts, drifts, and based on the value of the ore extracted: that plaintiff was the general manager of an adjoin

tunnels and appliances of the Maine mine ing mine, from which drifts and tunnels extend- for the working, mining, and developing and ed into the leased mine; that he had the right extracting ores found on the said Augusta to use the shafts and tunnels of said mine in

mine, and that by reason of the said facilities extracting ores from the leased mine, and could haye, by performance of his covenants, extract

so granted he (Ellis) was enabled to, and ed from said leased mine great quantities of could have, by the faithful and honest persaid ore of great value, to wit, of the value of formance of his covenants and agreements $75,000. Held, that the averments were sufficient to admit evidence in support of the coun

contained in the said lease, mined and "exterclaim.

tracted from the said Augusta lode great

quantities of said ore, of great value, to Appeal from District Court, Fremont Coun

wit, of the full value of $75,000, and that ty; M. S. Bailey, Judge.

the sum which would then and there have Action by Harry W. Trowbridge, adminis

been due and payable to the said defendant trator of the estate of Charles W. Ellis, de

Augustus Macon in that behalf would reaceased, against Augustus Macon and another.

sonably have amounted to the full sum of From a judgment for plaintiff, defendants

$5,000.” It is further averred that at the appeal. Reversed.

time of the execution of said lease and agreeThis is an action brought to foreclose a ment to sell said premises, and as a contrust deed given by appellants to secure a sideration for and an inducement to the promissory note for $500, payable to Charles said Augustus Macon to execute the said W. Ellis, dated November 25, 1896. Appel

Appel- lease, the said Ellis then and there executed lants admit the execution of the note and and delivered to the said Augustus Macon trust deed, but plead as a counterclaim, and an agreement which, after referring to the as an offset to plaintiff's cause of action, note sued on and the deed of trust upon damages sustained by them for the failure one-twelfth of the Augusta lode mining of Ellis to perform the covenants contained claim securing the same, and after reciting in a certain bond and lease, and to comply the execution and delivery of the bond and with the terms of a written agreement made lease, contains the following: “And wherewith reference to the note sued on. Briefly as, by the said agreements, the parties hereto stated, the facts averred are as follows: have agreed that payment of said promisOn April 1, 1899, Augustus Macon executed sory note is hereby extended for the period an agreement to sell and lease to Ellis an of two years in consideration of the premises undivided one-twelfth interest in the Augusta aforesaid, and it is hereby agreed that the lode mining claim. The bond and lease was royalties which may be due and payable to for the term of two years. The lease con- the party of the second part by the party of tained, inter alia, the following: “Second. the first part, under the terms and conditions Said Charles W. Ellis agrees that in the work- of the lease aforesaid, of the said interest in ing and development of the said premises said Augusta lode, shall be applied to the payment of the said promissory note until Appeal, 93 Pa. 434, the rule is thus stated : the principal and interest due thereon is "Where a right to mine iron ore or other fully paid: provided, the sum due for said minerals is granted in considertion of the royalty shall be equal or exceed the said reservation of a certain proportion of the sum due said party of the first part by party product to the grantor, the law implies a of the second part, as aforesaid, and that all covenant on the part of the grantee to work royalties so due shall be applied to the dis- the mine in a proper manner and with reacharge of said sum so owing by the party of sonable diligence, so that the grantor may the second part, so, as aforesaid, as fast as receive the compensation or income which the same are payable, in pursuance of the both parties must have had in contemplaterms of the lease hereinbefore mentioned, tion when the agreement was entered into." and that after the payment of said promis- In construing a lease, as in construing any sory note, together with the interest thereon, other contract, the first question to determine then the party of the first part promises to is what the parties thereto understood and insurrender and deliver the said promissory tended, as determined by the words employnote to the party of the second part.” The ed; and as an aid to the ascertainment of this court below excluded the evidence offered in intent, the situation of the parties, the subsupport of this counterclaim, thereby ruling ject-matter of the contract, and the purpose that the answer and cross-complaint did not to be accomplished should be taken into constate facts sufficient to constitute a cause of sideration. Applying this rule to the lease action, and rendered judgment for the under consideration, it was very clearly withamount of the note and interest and a decree in the intendment of the parties that this inforeclosing the trust deed. From this judy- terest covered by the lease should be worked ment and decree, appellants bring the case for the purpose of benefiting both the lessee here for review.

and the lessor, and with the expectation that Thomas Macon, for appellants. H. L. Mc

the royalties reserved would at least satisfy Nair, for appellee.

the note, as provided in the written agree

ment, and that the expectation or anticipation GODDARD, J. (after stating the facts).

of receiving such benefit was a strong induceThe only question presented for our consid

ment for the appellee to grant the lease in eration is whether the court erred in ex

question. The failure, therefore, of the lescluding evidence in support of the cross-com

see to work and develop the property, as pro

vided, rendered him liable for such damages plaint, upon the ground that it did not state facts sufficient to constitute a cause of action.

as the appellants could show they suffered It is contended by counsel for appellee that,

by reason of such failure. The amount of under the lease, it was optional for appellee

such recovery, if any, would depend upon

the amount of ore that could have been whether he would comply with its requirements as to working and developing the

mined if reasonable diligence had been ex.

ercised, and its value; in other words, whethproperty, and that for his failure to comply with these provisions the only remedy the

er there was ore that could have been mined, lessor was entitled to avail himself of was

and the leased premises operated at such to forfeit the lease; in other words, that

profit, after deducting the stipulated roythese requirements were merely conditions,

alties, as would be regarded fair and rea

sonable for ventures of this kind. C. F. & I. which, if complied with, gave Ellis the right

Co. v. Pryor, 25 Colo. 540, 57 Pac. 51. The to possession of the premises, and imposed

averments of the answer were sufficient to upon him the duty only to pay the royalty

admit of proof of this character. We think, agreed upon in case he mined and shipped ore therefrom.

therefore, the court erred in excluding evi

dence thereunder. We do not so understand the law applicable to leases of this character, but rather

The judgment is reversed, and the cause that these requirements impose upon the remanded for a new trial. Reversed and re

manded. lessee the obligation to work the mine in the manner specified, so long, at least, as he retains possession under the lease. In Koch's GABBERT, C. J., and BAILEY, J., concur,

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