damages suffered through the breach of contract. There is some, testimony to the effect that Smith, in conversation with Wall & Wood, set a time for the payment of the amount claimed by them; and there is also evidence tending to show that after the breach of contract Smith, having received back the sawmill he had contracted to sell Morril & Liggett, stated to Morril that he considered the matter settled as between them, (Smith and Morril.) This evidence could hardly have been offered to show an accounting and settlement, for no such issue was made by the pleadings. If it could be regarded as in any way tending to establish a legal waiver of the claim for damages, there was a clear conflict, and it should have been submitted to the jury. The judgment is reversed. In an action for damages for an assault and battery, it appeared that the defendant was an officer, and that the alleged assault was made on the oc casion of the arrest of plaintiff by defendant. But it did not appear that plaintiff attempted to resist arrest in any way; and he and other witnesses testified that he was thrown down by defendant. and that the latter got upon him with his knees; and a physician who attended plaintiff the next day testified to the serious character of his injuries. Held, that the granting of a nonsuit was error. Appeal from superior court of Denver. the Union depot building in the city of Denver is located, and that his only means of ingress and egress to and from said lots was a certain alley, which alley, prior to the time of the alleged assault and battery, the authorities of the city of Denver had attempted to vacate and appropriate to the use of the defendant company; and that, for the better use of its premises, the company had constructed a high board fence next to the appellant's lots, but upon the territory formerly included in said alley. Trouble arose between the defendants and plaintiff in reference to this fence, and upon the 24th day of June, A. D. 1884, the plaintiff sent an employe to remove said fence, who removed the same by sawing off from below the posts, and causing the fence to fall in upon appellant's lots; appellant standing by at the time, directing the work, and keeping a lookout for the company's watchman, the appellee McLean, who, upon the falling in of the fence, rushed in upon the appellant's premises and arrested him; which said arrest, and the subsequent treatment of the appellant by the defendants while so under arrest, are the acts here complained of. At the trial, upon the conclusion of the evidence for the plaintiff, the case was taken from the jury by the court, and a judgment of nonsuit entered. To reverse this judgment the plaintiff brings the case here by appeal. W. B. Felker and J. A. Bentley, for appellant. Teller & Orahood, for appellee. HOYT, J., (after stating the facts as above.) This action was brought to recover dam- Did the court err in taking the case from the ages for an assault and battery alleged to jury, and entering a judgment of nonsuit? have been committed upon the appellant by An answer to this question involves an exthe appellee McLean. The alleged connec- amination of the evidence introduced upon tion of the appellee the Union Depot & Rail- the trial. The appellant, who was a witness road Company with the transaction is set forth in his own behalf, testified, inter alia, that in the fifth paragraph of plaintiff's complaint, at the time he was arrested he demanded of in the following language, to-wit: "(5) That McLean the production of a warrant, and the said defendant John W. McLean was that McLean first told him he had a warrant then and there in the employ of the said de- for his arrest, but afterwards told him he had fendant company as a watchman, and com- none. The witness also testified that some mitted the wrongs and grievances hereinafter one knocked him down, and that McLean got set forth at the instigation and under the upon him with his knees on his breast, and directions and commands of, and with the that when he (witness) got up he was all full knowledge of, the said defendant the black and blue. Appellant further testified Union Depot & Railroad Company." The that he was so injured in the chest by Mcappellees answered separately; the company, Lean at the time as to cause him to spit blood, in its answer, denying all the allegations of and that he had not recovered from such inthe complaint, except those contained in the juries at the time of the trial, more than a fifth paragraph thereof. The appellee Mc- year thereafter. Upon cross-examination, Lean, in addition to denying all the material witness testified: "I had a pistol in my back allegations of the complaint, justifies under pants pocket. I did not attempt to draw it. the claim that he was, at the time, both * * * I did not do anything but demand a deputy-sheriff of the county, and a member a warrant." George Blas, a witness for of the police force of the city of Denver, and that the acts complained of were committed by him in the discharge of his duties as an officer, in arresting the appellant for a threatened breach of the peace. The new matter in the answer was denied in the replication. The pleading and evidence also show that the appellant claimed to be the owner of certain lots adjoining the property upon which plaintiff, testified: "After the fence went down, McLean came out with a stick, went into Schwenke's place, and carried him out on the platform. He threw Schwenke down, and had his knees on top of him. * * * All I saw McLean do was that he got him down, and got onto him with his knees, and I thought he was going to kill him.” William Felker, another witness for plaintiff, also tes Wis. 32; Spensley v. Insurance Co., supra. Tested by this rule, under the pleadings and evidence, the case should have been submitted to the jury. The judgment of the superior court must be reversed, and the case remanded. tified to the rough manner in which the de- | aside a verdict in his favor. Civil Code 1883, fendant McLean treated the plaintiff. Dr. S 147; Sutton v. Town of Wauwatosa, 29 Elsner, who was called to attend the plaintiff upon the next day professionally, testified to the serious character of the injuries. These are all the witnesses examined at the trial, with the exception of the defendant McLean, who was introduced by the plaintiff for the purpose merely of showing that he was in the employ of the defendant company as watchman at the time of the commission of the grievances complained of, and upon cross-examination testified that he was also a police (Supreme Court of Colorado. March 15, 1889.) man and deputy-sheriff. (12 Colo. 384) BRASHER v. DENVER & R. G. RY. Co. CARRIERS-DELIVERY OF Goods. Goods delivered to the defendant railroad com ery. Appeal from superior court of Denver. It does not appear that the plaintiff made any effort to prevent arrest or to resist Mc-pany by plaintiff, for shipment, were, before their Lean in any way. Nothing in the evidence to S., the agent of the plaintiff. Afterwards, on delivery to the consignee, directed to be delivered shows any justification or excuse for Mc- an order from S., directing that the goods be deLean's rough treatment of the plaintiff, and, livered to the consignee, and an order from the if it be conceded that the arrest was justifia- latter, directing that they be delivered to certain named persons, the goods were surrendered to ble under the circumstances, this would not such persons. On learning of such delivery, the exonerate McLean from liability for the sub- plaintiff made no objection, but began suit against sequent beating and bruising of the plaintiff. the consignee for the value of the goods. Held, 2 Greenl. Ev. § 98; Golden v. State, 1 Rich. that the defendant was not liable for such deliv Law, (N. S.) 292; Boles v. Pinkerton, 7 Dana, 453; Kreger v. Osborn, 7 Blackf. 74; Baldwin v. Hayden, 6 Conn. 453. "Where an officer The appellant, as plaintiff in the court beof justice is charged with assault and battery, low, brought his action against the appellee, it is a good defense to show that he was at as defendant, alleging in his complaint, in the time engaged in the execution of his of- substance, that the defendant was a corpoficial duties, and that the offense was com-ration duly organized, and doing business as mitted in their discharge. No greater force, a common carrier and warehouseman of however, can be used than is necessary to goods and chattels for hire, at all the times effect the immediate object." 2 Whart. mentioned in the complaint; that the plainCrim. Law, par. 1260. And certainly, in a tiff, in partnership with his brother, under civil action for damages, the defense should the firm name of Brasher Bros., on or about not be extended beyond that allowed the the 19th day of April, A.D. 1881, received from officer if criminally prosecuted; and under their traveling agent, J. J. Sims, an order the evidence the case at bar should have purporting to come from P. J. Keegan and been submitted to the jury. Hilliard v. Michael W. Keegan, for certain wines, liqGoold, 34 N. H. 245; Spensley v. Insurance uors, and cigars, with directions to bill said Co., 54 Wis. 433, 11 N. W. Rep. 894. In the merchandise to said Michael W. Keegan, but case of Hilliard v. Goold, supra, the court said: to ship and consign the same to P. J. Kee"The true rule on this subject, to be deduced gan, at Chama, N. M., for the reason that from all the authorities, would seem to be said P. J. Keegan had an arrangement that whenever the justification of any act, al- whereby he could secure a reduction in leged to be wrongful and injurious, is base freight rates for all goods consigned to him. on the exercise of authority, whether that And the plaintiff further alleges that said authority be incident to the official character Brasher Bros., relying upon said order and and duty of the party exercising it, or arise directions, on or about the 21st day of Janufrom the misconduct of the opposite party ary, A. D. 1881, delivered to said defendant and the necessities of the case, the question company, as a common carrier for hire, the of the excess of such authority is to be deter- merchandise so ordered, for the purpose of mined by the jury, upon the evidence sub- having the same transported from the city mitted for their consideration, and not by the of Denver to Chama, N. M., and there decourt." We are not to be understood as say-livered to said P. J. Keegan, said merchaning that a case of a similar nature might not arise in which the evidence would be so entirely deficient in some essential particular as to make it the duty of the court, upon motion therefor, to enter judgment of nonsuit; but, to sustain a motion for that purpose, the court, looking at the evidence in the most favorable light for the plaintiff in which the jury would be at liberty to view it, must be able to say that there is no evidence which would justify a verdict for him, or such a clear and decided preponderance of evidence against him as would require the court to set dise being then and there of the value of $2,000; that after said merchandise was so delivered to the defendant company, and while it was still in its possession, and on or about the 1st day of February, A. D. 1881, said P. J. Keegan repudiated said transaction, and refused to receive said merchandise, and thereupon said Brasher Bros. ordered and directed the defendant company not to deliver the same to either the said P. J. Keegan or to the said Michael W. Keegan, but to hold said goods and chattels, and deliver the same to said J. J. Sims, their agent, up 66 on his arrival at said town of Chama; that | quent order to deliver said goods to said the defendant company, in utter disregard of agent. It also appears that the consignors such instructions, so negligently and care- were willing that the goods should be delivlessly obeyed said order, and so carelessly be- ered to the consignee, provided P. J. Keegan haved itself with respect to said merchan- would pay a balance claimed as due from dise, that, by and through its own negli-him upon a former order, and also give his gence and improper conduct, said goods and written guaranty to pay for these goods. It chattels were afterwards, and upon the 15th would seem from the willingness of the conday of February, A. D. 1881, delivered by signors to have the goods delivered upon the said defendant company to the said Michael conditions named that their conduct was at W. Keegan, who was then and there, and for no time controlled by any doubt entertained a long time before said delivery, and before by them of the financial responsibility of P. the shipment of said goods and chattels, J. Keegan. Mr. Keegan, (P. J.,) however, wholly insolvent, so that, by the negligent denied all responsibility on his part for said conduct of the defendant, said goods and order, and repudiated the entire transaction; chattels became wholly lost to said Brasher refused to give the required guaranty, and Bros. Plaintiff alleges the dissolution of the also denied the authority of the parties to copartnership between himself and brother, consign the goods to him, and, upon learning and an assignment to him of the chose in ac- of the expected arrival of the goods, wrote tion in the complaint declared upon, and the agent at Chama as follows, to-wit: prays judgment for the value of said goods, and also for special damages. The defendant, in its answer, admits, by not denying, its incorporation; the receipt of certain goods from Brasher Bros., to be transported as charged; and admits that on or about the time mentioned in the complaint the defendant received notice from said Brasher Bros. to the effect that said goods should be delivered to J. J. Sims, and should not be delivered to P. J. Keegan, and alleges in this behalf that said goods were delivered in accordance with the instructions of said Brasher Bros., and not otherwise. Defendant also admits the assignment of the claim as alleged. All the other allegations of the complaint are traversed. At the trial, upon the conclusion of the evidence for the plaintiff upon the motion of the defendant, the court entered a judgment of nonsuit, over the objection of the plaintiff, and to reverse this judgment the cause is brought here by appeal. Markham & Dillon, for appellant. E. O. Wolcott and J. F. Vaile, for appellee. "Box 60, Durango, COLORADO, Feb. 1st. 'Agent D. & R. G. R. R., Chama, N. M.DEAR SIR: I understand that there has been goods delivered to M. W. Keegan, either at Alta, Wolf Creek, or Chama, which were consigned to me. I understand they were such stuff as liquors, beer, etc. Please deliver nothing consigned to me to him, or anybody else, in future, without my order or the order of C. O. & C. "Very respectfully, "PETER J. KEEGAN. "WM. "Charge him full rates of freight, as those things were not for me, but shipped in my name, without my authority. "P. J. KEEGAN. "M. W. K. got some butter on side track." The same day the consignor caused the general freight agent of the appellee to send the following dispatch to its agent at Chama, N. M.: "DENVER, Feb. 1, 1881. "F. C. Jackson, D. & R. G. Ry. Co.-F. C. Jackson, Chama: Consignee of property consigned to M. Keegan, Chama, asks that goods be held until he arrives, to-morrow night. Property consists of liquors and cigars. [Signed] "S. W. E. "S." HAYT, J., (after stating the facts as above.) Of the 11 assignments of error in this case those only which question the right of the court to enter the judgment of nonsuit have been argued. Those not argued Sims, the traveling agent for the consignrelate to the rejection by the trial court of ors, was then on his way south, between certain evidence offered by appellant, which Denver and Antonito, but was delayed by a evidence becomes immaterial under the view snow blockade, so that he did not reach taken of the case in this opinion. The gist Chama until about the 6th day of February, of the plaintiff's action is the alleged wrongful and was then sick, and remained so until his delivery of the goods to Michael W. Keegan death, which occurred upon the night of by the defendant company, and if there was February 15th. Upon February 14th, the not suflicient evidence to warrant the sub- goods still being in appellee's possession at mission of that question to the jury, then the Chama, at the request of the consignors, Mr. judgment of nonsuit was properly entered. S. W. Eccles, the general freight agent of the The evidence introduced on behalf of the ap- railway company, sent the following telepellant shows the delivery to and shipment gram to Mr. Jackson at Chama: "Please deof the goods by the appellee, as alleged in the liver goods marked M. Keegan to J. J. Sims, complaint. The value of the goods is also who will pay charges. Order of Brasher shown, together with the order of the con- Bros., consignors." And about the same signors, to the railway company, to withhold time the following order from P. J. Keegan the delivery of said goods until the arrival was presented to Mr. Jackson, appellee's of their agent at Chama, and their subse-agent at Chama: "CHAMA, NEW MEXICO, Feb. 14, 1881. "Jackson, Agent at Chama, N. M.-DEAR SIR: Please deliver to M. W. Keegan, or P. E. Keegan, certain goods which they claim, and which appears as consigned to me. Also please collect freight for same, and deduct from my freight account, as they claim it was an error in the initials made by the consignor. "Very respectfully, P. J. KEEGAN.” Mr. Jackson refused to deliver the goods upon this order without an order from Sims, and thereafter the following order was presented to him: "FEB. 15, 1881. "Mr. Jackson: Please deliver to P. J. Keegan any goods from Brasher Bros. marked to him. J. J. SIMS. "B. P. B. "C. T. "A. E. R." Upon these two orders the goods were delivered by Mr. Jackson to Michael W. Keegan. It is claimed, however, that, after the receipt of the consignors' instructions contained in the telegram of the 14th inst., Jackson, acting for the railway company, had authority only to deliver the goods to J. J. Sims in person, and that he was not authorized to deliver them to any other person upon the order of said Sims. It appears from the evidence that Mr. Sims, who was at the time in the employ of Brasher Bros., as a traveling salesman, went to Chama by their direction, for the purpose of attending to this business in their behalf, and when they were afterwards informed that the goods had been delivered upon his order, they made no objection to such delivery, but, after receiving such information, began suit for the value of the goods against both P. J. Keegan and Michael W. Keegan. Under these circumstances we think that it suthiciently appears that Mr. Jackson, acting for the appellee, was authorized to deliver the goods not only to Mr. Sims in person, but to Mr. Keegan, upon his (Sims') order. And as to the claim advanced that the Sims order was a forgery, we are unable to find any support in the evidence for such an assumption. These orders were all in evidence before the court as a part of the plaintiff's case at the time the motion for a nonsuit was made, so that it clearly appeared that at the time of the delivery of the goods to Michae! W. Keegan the appellee was in possession of an order from consignors' agent, Sims, to deliver the goods to P. J. Keegan, and also an order from P. J. Keegan, to deliver the goods to either M. W. Keegan or P. E. Keegan; and, as Mr. Jackson, apparently acting in entire good faith, delivered the goods upon these orders to Michael W. Keegan, we conclude that the railway company was relieved of all | liability to the consignors by such delivery. After a careful examination of the evidence, we are of the opinion that the court committed no error in entering the judgment of nonsuit. Baker v. Hughes, 2 Colo. 81; Behrens v. Railway Co., 5 Colo. 404, 405; Rail STRAHAN, J. for the purpose of further considering the 1. A rehearing was allowed main question decided, as well as the propriety of remanding the cause to enable the plaintiff to apply for leave to amend his prohas been argued on both points, and upon ceedings against the garnishee. The cause full consideration we find no cause to change the opinion already filed in the cause. lowed in furtherance of justice. The spirit, if 2. Amendments ought to be liberally alnot the letter, of the Code requires this; but in this case there is nothing to amend. No allegations whatever were filed, and in such case it is not perceived how there could be insists that the aflidavit used before the judge an amendment. Counsel for the respondent to obtain the order on the garnishee to answer might be treated as allegations within the meaning of the Code, but we think otherwise. Such affidavit cannot supply the office of a pleading which the Code expressly requires in the case. The plaintiff could not disregarding the plain requirements of the now be permitted to file allegations without Code. After the plaintiff obtained his order garnishee was thereby required to appear, or on the garnishee to answer, and before such within a time to be specified in the order, the plaintiff was bound to serve on such garnishee written allegations and interrogatories. Hill's Code, § 164. The time fixed for such service has long since elapsed, and it is not perceived on what principle the court could now permit it to be done, and treat such allegations as an amendment of something that never had any existence. It would be a misnomer to call it an amendment. Instead of an amendment, it would be the making of a new case after the time limited in the statute for that purpose. We doubt the an amendment, to extend and enlarge the power of the court, by calling the proceeding provisions of the Cole referred to. Besides this, a garnishee is brought, by virtue of the coercive power of the court over his person, and disobedience of the order to appear is punishable as a contempt. In such case I Publication delayed by inaccessibility of cory. think the garnishee is in court for the particular purpose specified in the statute, and if the plaintiff would succeed against him he must substantially follow the statutory requirements. I am unable, therefore, to perceive any error in the former opinion, and it must be adhered to. (16 Or. 388) BROWN et al. v. CORSON et al.1 the deed, or fail in their suit. To do this it the cases cited; but, in the absence of any STRAHAN, J. The plaintiffs have filed a petition for rehearing, in which they seem to overlook the real question upon which our previous decision rested. The question contested arises upon the refusal of the court below to instruct the jury, at the plaintiffs' re-grantees. In such case the land would not quest, that said admissions of the parties, be "pre-empted," within the meaning of the and said testimony as a matter of law, estab- statute, nor would any private right whatlished the fact that the said land was not em- concede that, if it were shown that Ross filed ever have been acquired in the same. I fully braced in the grant to the Oregon Central Railroad Company by said act of congress, the paper required by statute, he would have and that the Oregon & California Railroad acquired an inchoate right to the land, and Company acquired no interest in said lands, whether he acted in good faith or not the and that said deed from the Oregon & Cali-case would have been within the principle of fornia Railroad Company to the plaintiffs passed no interest in said land to plaintiffs. showing whatever on that subject, the court The "admissions" referred to in this instruc- cannot declare, as a matter of law, that the tion were made upon the trial, and were to entry in the book has all the force and effect the effect that the Oregon & California Rail- of an actual settlement on the land and the road Company succeeded to all the rights of filing of the preliminary papers. It is not the Oregon Central Railroad Company to the perceived how section 745 of the Code aids land grant provided for in the act of congress in this copy of the register, nor from any oththe plaintiffs. The difficulty is that neither of July, 1866, and that neither the said lastnamed company, nor the said E. O. Corson, er document offered in evidence, is there a ever had any title or interest in said property particle of evidence tending to prove several other than such as it or he acquired under of the essential requisites of a valid pre-emption. Without such proof the plaintiffs failed said act of congress and the amendments thereto. It was further admitted that prior to prove title out of the defendants when they to the execution of said deed by defendants made the deed in question. This failure to plaintiffs said E. O. Co. son had purchased could not be supplied by the instruction from said Oregon & California Railroad Com- asked, which would have been its legal effect pany whatever rights it had to said land, and had it been given. The rehearing must had received its certificate therefor; that, at the time of the execution of said deed, said Corson assigned said certificate to the plaintiffs; and subsequently the said railroad company, in pursuance of said certificate, executed and delivered to the plaintiffs a deed of said land. It thus appears that the plaintiffs have an indefeasible title to said lands, unless the same is defeated by the papers referred to. The court was required to declare that this testimony, as a matter of law, defeated that title. In refusing to do this, we have held that the court did not err, and we adhere to that opinion. The papers offered had the effect claimed for them or they did not. There is no room for any middle ground, under the claim of secondary evidence. It must be remembered that the plaintiffs were bound to prove title out of the defendants at the time the defendants signed 'Publication delayed by inaccessibility of the copy. therefore be denied. (17 Or. 84) CROSS et al. v. BASKETT.2 of G. J. B., deceased. He filed his final account as 2. A decree approving the final account of an executor or administrator is only primary evidence 2 Publication delayed pending petition for rehearing. |