court is approximately upon it. The fill complained of did not obscure the line entirely. It simply made it difficult to follow its sinuosities, resulting in the adoption by the court of a conventional line between the two points in dispute. As there is no evidence that the state is the loser by this rule of the court, we see no necessity for disturbing it.

The judgment appealed from is affirmed.

HADLEY, C. J., and MOUNT, CROW, and ROOT, JJ., concur.

(42 Colo. 179)

KNIGHT-CAMPBELL MUSIC CO. v. BUCK. (Supreme Court of Colorado. April 6, 1908.) EVIDENCE-PAROL-ADMISSIBILITY TO VARY TERMS OF A WRITING.

In an action on a written contract for the sale of a piano, providing that the whole terms of agreement must be embodied in the contract, it was improper to permit defendant to show that when and after the contract was signed plaintiff's salesman represented that if defendant should be unable to pay the price plaintiff would take back the piano.

Appeal from County Court, City and County of Denver; Rice W. Means, Judge.

Action by the Knight-Campbell Music Company against William H. Buck. From a judgment of the county court for defendant on appeal from justice court, plaintiff appeals. Reversed.

Harry C. Riddle, for appellant. A. Newton Patton, for appellee.

BAILEY, J. The defendant made and entered into a contract in writing with the plaintiff, wherein he promised to pay to plaintiff the sum of $278 in installments of $8 per month. The consideration of this contract was the sale by plaintiff to defendant of a piano. The agreement provided that there should be a lien upon the piano for the amount of the purchase price, and in the event of the nonpayment of the note the plaintiff could take possession of the piano, sell it, and out of the proceeds pay the costs attending the sale and a reasonable commission therefor, and apply the balance upon the note. After making two of the payments the defendant returned the piano to plaintiff. Plaintiff immediately wrote to defendant saying that it could not receive the piano, but had placed it in a storage room subject to his order, and demanding payment of the balance then due. This being refused, this action was brought in the justice court, and from there appealed to the county court, where judgment was rendered for the defendant. Plaintiff appeals.

The contract contains the following clause: "That the whole terms of agreement must be embodied in this contract, and that verbal arrangements made with agents relating to terms of sale, payment of principal and interest, or any other matter contemplated by this contract will not be binding." Notwithstanding this condition, and notwithstanding

the rule of law that parol testimony cannot be admitted to vary the terms of a written contract, the court, over the objection of plaintiff, permitted the defendant to prove that the salesman who acted for the plaintiff in making the sale represented to the defendant before, at the time of, and shortly after, the contract was signed, that in the event of the defendant's being unable to pay the amount stipulated in the contract the plaintiff would take back the piano. The trial court based its judgment upon this testimony. The ruling of the court in admitting this testimony was clearly erroneous. "When the parties to an agreement have reduced it to writing in such form as to import a valid legal obligation, complete and unambiguous in its terms, with no uncertainty as to the extent of the obligation, it is, in the absence of fraud, accident, or mistake, conclusively presumed that the writing constitutes the whole engagement of the parties, and no extrinsic evidence of prior or contemporaneous negotiations between the parties admissible to vary or qualify the written contract." Oil Creek G. M. Co. v. Fairbanks, Morse & Co., 19 Colo. App. 142, 74 Pac. 543; McIntosh-Huntington Co. v. Rice, 13 Colo. App. 393, 58 Pac. 358; Carr v. Schafer, 15 Colo. 54, 24 Pac. 873. This doctrine must necessarily be enforced when the contract contains a provision which prohibits verbal arrangements made with agents, as is the case in this matter.

Because of the error of the court in admitting this testimony, and because it affirmatively appears from the record that the judgment for the defendant was based upon such incompetent testimony, the judgment must be reversed. Reversed

STEELE, C. J., and GODDARD, J., concur.

(42 Colo. 540) HOWE v. TOWN OF GUNNISON et al. (Supreme Court of Colorado. April 6, 1908.) LIMITATION OF ACTIONS INSTRUMENT FOR PAYMENT OF MONEY-TOWN WARRANTS.

An action on town warrants, commenced more than six years after repudiation of the warrants by the town authorities as illegal and invalid, coupled with a positive refusal to provide for their payment, is barred.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 125.]

Error to District Court, Gunnison County; Theron Stevens, Judge.

Action by Eugene H. Howe against the town of Gunnison and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Richardson & Hawkins, for plaintiff in er

ror.

HELM, J. The judgment of dismissal before us followed an order sustaining a demurrer to the amended complaint. The ac

tion related to certain warrants issued by the town of Gunnison during the years 1885, 1887, and 1888, aggregating the principal sum of $1,350.03. The demurrer challenged the complaint upon two grounds: (1) That a cause of action was not stated therein; and (2) that relief was barred by our six-year statute of limitations. No oral argument was made in the case, and no printed argument or brief was filed for defendants in error; nor does the record contain any opinion or statement showing the specific ground upon which the demurrer was sustained by the court below. A strong and persuasive printed argument is, however, filed on behalf of plaintiff in error, and from the same we infer that the ruling below rested upon the statute of limitations. It is insisted that the complaint was carefully drawn, and that its averments sufficiently state a cause of action and require an answer; also that where, as in this instance, municipal warrants are issued by a town or city, which warrants are payable out of a special fund created by taxes to be levied, the statute of limitations does not begin to run until the money for the payment of such warrants has been collected and credited to the special fund, nor until by call of the warrants or otherwise as provided by law the holder has been legally notified to present the same for payment.

Upon both of these questions as at present advised we are strongly inclined to accept the view presented by counsel for plaintiff in error. But examination of the complaint reveals an infirmity not mentioned, which is also reached by the latter branch of the demurrer, and might have been the basis of the ruling below. The latest of the warrants in suit were issued and registered in 1888. This action was not begun until 1902. Thus a period of 14 years elapsed between the two dates. The complaint alleges that the town officers have at all times during this period claimed that there were no funds applicable to the payment of these warrants; also that such officials have refused to levy a tax or otherwise provide for such payment. But in referring to those officials, and stating the reason for their refusal to make such levy, the pleading declares that: "They do now claim, and have at all times claimed-and their predecessors before them-that the said warrants and orders are invalid and void, and that they have not provided, and will not provide, for the payment of the same or any part thereof." The paragraph in which this language occurs deals with the entire period mentioned. It describes the action of the town authorities and the efforts of the owner of the warrants from "the dates of the said several registrations as aforesaid" down to the time of the filing of the complaint. And we think it sufficiently appears on the face of the pleading that the first assertion by the town authorities of the invalidity of the warrants sued on and refusal to take care of the same occurred more than

six years prior to the commencement of the action.

The warrants were regular in form, and appear to be binding contracts of the municipality. They were, according to the complaint, taken by plaintiff for valuable consideration and in good faith. Their repudiation by the town authorities as illegal and invalid, coupled with a positive refusal to provide for their payment, certainly gave the holder a right to invoke judicial inquiry. Such holder at once became entitled to an adjudication in some form of the question of invalidity thus raised. And, if successful upon such inquiry, he could properly require a tax levy, or in some appropriate way coerce payment, if the municipal authorities still declined to act. Under these circumstances it became the duty of the holder of the warrants to proceed with reasonable promptness in the assertion of his rights. It cannot be that after such repudiation by the town officials he could remain passive indefinitely. He could not quietly wait for a change of heart by those officials, or for the election of others who would hold his warrants legal; nor could he fold his hands and bide his time until the evidence showing his warrants to be illegal had disappeared, either through the death or removal of witnesses, or by the loss or destruction of papers and documents. Justices v. Orr, 12 Ga. 141; 1 Dillon, Munic. Corp. (4th Ed.) § 505, note.

It follows from the foregoing that a plea of the statute of limitations was in order; and, as the matters essential to such plea sufficiently appear in the complaint, the demurrer was correctly sustained. The judgment will be affirmed. Affirmed.

STEELE, C. J., and BAILEY, J., concur.

(43 Colo. 1) MEAD v. PH. ZANG BREWING CO. et al. (Supreme Court of Colorado. April 6, 1908.) 1. NEGLIGENCE PERSONAL INJURIES -DANGEROUS PREMISES-LIABILITY. That a city saloon license was in a brewing company's name does not make it liable to one injured by a trick stairway in the saloon, the business being conducted by another in his own name; he holding the federal license, and the company having no license in or control over the business.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 66.]

2. TORTS JOINT LIABILITY-REQUISITES.

To make persons jointly liable for a tort, it must appear in some way that it was the result of their joint action or joint negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Torts, § 29.]

Error to District Court, City and County of Denver; Peter L. Palmer, Judge.

Action by Marcus S. Mead against the Ph Zang Brewing Company and another. From a judgment for defendant company, plaintiff brings error. Affirmed.

Plaintiff in error sustained personal injuries by being thrown down, or falling from, a trick stairway located in the premises known as 919 Seventeenth street, in the city of Denver. At that time the place was being conducted as a saloon. He brought suit against John Hall and the Ph. Zang Brewing Company to recover damages, claiming that the saloon was being conducted by these defendants when he was injured. According to the testimony, Hall had purchased the fixtures from one O'Grady, subject to a mortgage thereon to the brewing company, for the sum of $1,500. He gave the company a mortgage for this amount, one of the conditions of which was that he should purchase no beer for sale in the saloon except from it. The premises were leased by Hall, and he paid the rent. The government license authorizing the sale of liquors in these premises was secured by him and stood in his name, while the license from the city for the same purpose stood in the name of the brewing company. The latter had no interest in the business whatever, or any control over it. It was conducted by Hall, and was entirely under his management. At the conclusion of the testimony plaintiff in error requested an instruction to the effect that the fact that the city license for the sale of intoxicating liquors on the premises stood in the name of the brewing company was conclusive proof that the saloon was owned by, and under the control of, that company. This request was refused; the court instructing the jury to the effect that the mere fact that the city license was in the name of the company did not render it liable to the plaintiff, and directed the jury to return a verdict in favor of the brewing company. Plaintiff brings the case here for review on error.

Jerry A. Lovell and Jno. F. Mail, for plaintiff in error. Wolcott, Vaile & Waterman and H. H. Dunham (Wm. W. Field, of counsel), for defendant in error.

GABBERT, J. (after stating the facts as above). The only question presented for our consideration is the ruling of the court refusing the instruction requested, and in directing the jury to return a verdict for the brewing company. The brewing company was not the lessee of the premises, and had no control thereover whatsoever. The fact that the license stood in its name would be competent to prove that it was interested in or was conducting the saloon, but not conclusive on that question in the face of the other undisputed testimony bearing on the subject of who was the owner of the saloon, or was, in fact, conducting it. Hall was the lessee, and conducted the business therein in his own name, and entirely in his own interest. Both these questions of fact are established beyond dispute by the testimony. In short, it appears that the saloon was his, conducted by him, and that the brewing company had no con

trol whatever over the premises in which plaintiff was injured. A person is not responsible for injuries sustained by another through a device which he has neither constructed nor maintains, and over which he has no control. In order to render persons jointly liable for a tort, it must appear in some way that it was the result of their joint action, or joint neglect of duty.

It may be true, as contended by counsel for plaintiff, that Hall had no right to conduct the saloon without a license from the city authorities; but, be that as it may, the fact that a license to conduct the saloon in the premises occupied by him stood in the name of the brewing company would not, in the face of the undisputed testimony in this case, create a relationship between the company and himself, which would make the company responsible for his acts. Both may have been violating the law with respect to a license, but a violation of the law does not create a civil liability, except for the results naturally following such violation.

The judgment of the district court is affirmed.

Judgment affirmed.

STEELE, C. J., and CAMPBELL, J., con

cur.

(43 Colo. 118)

MORSE v. PEOPLE (two cases).
(Nos. 5,978, 5,979.)

(Supreme Court of Colorado. April 6, 1908.) 1. CRIMINAL LAW-COURTS - JURISDICTIONMODE OF ACQUIRING-CONSENT OF PARTIES. Courts can entertain jurisdiction of causes only in the methods prescribed by law; and an agreement of the parties in contravention of such provisions has no force or effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 197.] 2. SAME.

2 Mills' Ann. St. § 2678, provides that no appeal shall lie from a judgment of a justice in any cause to the district court, but that such appeal shall be taken to the county court. Const. art. 6, § 23, provides that no appeal shall lie to the district court from any judgment given on an appeal from a justice of the peace. Act April 10, 1905 (Sess. Laws 1905, p. 274, c. 114), makes it unlawful to engage in the business of an "itinerant vendor" without being licensed so to do. Section 16 of the act (page 279) provides that justices of the peace shall have jurisdiction concurrent with district courts of all civil actions and criminal proceedings arising under the act. Held that, while the district court would have jurisdiction of a criminal proceeding arising under the act if properly brought in that court, it could not acquire jurisdiction by the transfer by consent of the parties of a proceeding originating before a justice of the peace, and pending on appeal in the county court; and, such a transfer being void, jurisdiction of the case remained in the county court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 197.]

Error to District Court, Rio Grande County; Charles C. Holbrook, Judge.

C. F. Morse was convicted of selling cer

tain manufactured articles without having procured a license and brings error. Reversed and remanded.

C. F. Clay, for plaintiff in error. William H. Dickson, Atty. Gen., and Samuel Huston Thompson, Jr., Asst. Atty. Gen., for the People.

GODDARD, J. The above numbered cases were commenced before a justice of the peace upon sworn complaints, charging the plaintiff in error with selling and exposing for sale certain manufactured articles in Rio Grande county, Colo., without having procured a license from said county as required by an act approved April 10, 1905 (Sess. Laws 1905, p. 274, c. 114). Upon trial before the justice of the peace he was convicted and fined $50 and costs in one case, and $30 and costs in the other. From these judgments, he perfected an appeal to the county court of that county. Upon a stipulation entered into by the counsel for the people and the defendant, the causes were transferred by the county court to the district court of Rio Grande county. For the purposes of the trial, the causes were consolidated, and tried to the court upon an agreed statement of facts. The defendant was found guilty, and fined $50 and costs upon both charges. To these judgments the defendant prosecutes writs of er

ror.

The records in both cases being identical, for the purpose of filing abstracts of record and briefs the causes have been consolidated and argued together. It is unnecessary to consider any of the numerous assignments of error argued by counsel for plaintiff in error, because the district court was without jurisdiction to hear the causes or render the judgments complained of, for the reason advanced by the Attorney General. As he well contends, the attempt of counsel for the respective parties to confer jurisdiction upon the district court by transferring the causes from the county court in the manner disclosed by the record was of no avail; that there is no warrant for the course pursued by the county court, but such proceeding was in violation of the mandatory provisions of the statute and Constitution. 2 Mills' Ann. St. § 2678, provides that: "All appeals from judgments of justices of the peace, both in civil and criminal actions, shall be taken to the county court of the same county, and no appeal shall lie from a judgment of a justice of the peace, in any cause, civil or criminal, to the district court." Section 23, art. 6, Const., provides that "no appeal shall lie to the district court from any judgment given upon an appeal from a justice of the peace." It is too well settled to require the citation of authorities that courts can entertain jurisdiction of causes only in the methods prescribed by law, and the agreement of parties in contravention of such provisions has no force or effect whatever. As was said by Justice Campbell in Smith v. Smith, 24 Colo. 114, 48

Pac. 812: "Jurisdiction, if it attaches at all, is because the Constitution, or some statute of the state has given it." If the course pursued by the county court could be held to confer jurisdiction upon the district court, then the parties could by indirection accomplish a result which they are expressly prohibited by the foregoing statute and constitutional provisions from doing directly. In Dykeman v. Budd, 3 Wis. 640, the Supreme Court of Wisconsin had under consideration a proceeding identical with the one before us. The case was on appeal in the county court from a judgment of a justice of the peace, and the parties stipulated that the venue be changed to the circuit court. The court, speaking of the jurisdiction of the circuit court in that "The cause, at page 643 of 3 Wis., said: court in which the suit is brought cannot by stipulation of the parties transfer to another its own powers and responsibilities. As the law stood at the time of the change of venue in this case, the circuit courts had no jurisdiction of appeals from justices of the peace in civil cases, except in those, the venue of which was changed thereto in conformity with the provisions of the statute.

*

If jurisdiction could be acquired of appeals by the circuit court by stipulation of the parties, consent would open a clear and direct path from the justice to the circuit court without the intervention of the county court at all" and upheld the decision of the circuit court holding that the stipulation and order of the county court changing the venue to the circuit court was unauthorized and void.

Counsel for the plaintiff in error concedes that the law is as above stated, but contends that there was no attempt to confer jurisdiction of the subject-matter in these cases by stipulation, for the reason that jurisdiction was expressly conferred by the statute itself upon the district courts of this state by section 16, c. 114, p. 279, Sess. Laws 1905, which provides: "Justices of the peace shall have jurisdiction concurrent with district courts to hear, try and determine all civil actions and all criminal proceedings arising under this act, or brought for the violation of any of the provisions of this act." While it is true that the district court would have jurisdiction to try and determine a criminal proceeding arising under this act, if properly brought in that court, it cannot acquire jurisdiction by the transfer of a cause originating before a justice and pending on appeal in the county court, but must obtain jurisdiction if at all, in the mode prescribed by law, which would be by an indictment or by an information, verified as the statute requires. "Jurisdiction to try and punish for a crime cannot be acquired otherwise than in the mode prescribed by law, and, if it is not so acquired, any judgment is a nullity. A formal accusation is essential for every trial for crime. Without it the court acquires no jurisdiction to proceed, even with the consent of the parties, and, where the law requires a particular

is essential.” 12 Cyc. p. 221, and cases cited in notes 88 and 89. It is manifest, therefore, that the district court did not acquire jurisdiction either of the subject-matter or the person by the transfer to it of the causes by the county court. Such proceeding being void and of no effect, the jurisdiction to try the cases remains in the county court. The judgments of the district court are therefore reversed, and the causes remanded to the district court, with direction to retransfer the same to the county court. Reversed and remanded.

STEELE, C. J., and BAILEY, J., concur.

(42 Colo. 522)

LAGUNA CANAL CO. v. ROCKY FORD DITCH CO.

(Supreme Court of Colorado. April 6, 1908.) JUDGMENT-CONCLUSIVENESS-MATTERS CON

CLUDED.

In a proceeding suplemental to an original statutory proceeding for the adjudication of water rights, petitioner alleged an additional application of water so that its appropriation then aggregated the number of cubic feet specified, and prayed a supplemental decree covering this additional application and allowing a priority therefor dated as of the commencement of its canal. Demurrers on the ground that the petition did not state a cause of action were sustained, and a decree entered dismissing the petition without prejudice to petitioner's right to institute proceedings regarding any right claimed by it, and not antedating or conflicting with any of the various rights theretofore adjudicated by the decrees in the adjudication of priorities for the use of water theretofore had. Thereafter petitioner filed another petition, all the facts of which pertaining to petitioner's right had been stated in the prior petition and in practically the same form, involving the same subject-matter and identical issues and parties, and a decree was prayed allowing a priority dating as of the commencement of its canal. Held that, though petitioner was given permission to bring a new proceeding to adjudicate a proper priority for such new application of water, the decree was res judicata of petitioner's right to claim its priority as dating from the commencement of its canal.

Appeal from District Court, Bent County; Jesse G. Northcutt, Judge.

Supplemental proceeding in an original statutory proceeding for the adjudication of water rights by the Laguna Canal Company. The Rocky Ford Ditch Company filed a protest and answered, and from a decree adjudicating the priority of the canal company as of a certain date the canal company appeals. Affirmed.

On November 3, 1892, a decree was entered by the court below in an original statutory proceeding for the adjudication of water rights in district No. 17. To that proceeding both appellant and appellee were parties, and their rights of priority as then existing were determined. On April 7, 1894, a supplemental decree was entered on petition of appellant. By such supplemental proceeding appellant showed that it had made ap

from its canal, and the court entered a decree giving a priority for the water so applied; the aggregate quantity of water thus recognized being 155 cubic feet per second, and the priority dating as of the commencement of the canal. From that decree no appeal was taken, all parties acquiescing therein, and it has since been generally recognized by the water commissioners and others as governing the distribution of water. By the first decree the dimensions of Lake Canal, belonging to appellant, were given, and a carrying capacity of 566.5 cubic feet per second was allowed. In connection with both decrees there was an express finding that said canal was constructed with due diligence, and completed within a reasonable time; it otherwise appearing that the same was 25 miles in length. On August 1, 1902, appellant filed a petition in said priority proceeding reciting that since the decree of April 7, 1894, was entered it had made additional applications of water from Lake Canal, and demanding a decree for such new application of water with a priority dating from the commencement of the canal. The Rocky Ford Ditch Company filed a protest and answer to this new petition, pleading, among other things, an intermediate proceeding begun on September 5, 1899, and a decree entered therein on April 4, 1900. An argument was made on these pleadings, the position of appellee was sustained, and an interlocutory order or judgment was entered on April 22, 1903, denying appellant the right to such enlarged priorities dating from the beginning of its canal. This interlocutory order, however, permitted appellant to proceed, subject to the foregoing limitation, to establish a completed appropriation for the additional quantity of water shown to have been applied since the decree of April 7, 1894, was entered. Appellee, having accomplished its purpose, participated no further, and appellant proceeded with its proofs. On April 29th a decree was entered giving appellant a priority numbered 23 for the quantity of water applied since entry of the former decree. But the priority for such additional water was fixed as August 30, 1894; so that the new appropriation was evidently given the earliest possible priority that would not change or disturb the previous adjudication and priorities as fixed in the decree of April 7, 1894. From the last decree the present appeal was taken. Appellant's present challenge of this decree rests upon the contention that said priority numbered 23 should have been referred back to September 25, 1889, the date of the commencement of Lake Canal. In view of the conclusion reached in the opinion, it is deemed unnecessary to make a further or more detailed statement of the facts.