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flows with great rapidity; it is not inclosed by fences, nor is any other precaution taken for the protection of the public in connection therewith. No argument or illustration is needed to demonstrate the fact that this canal is, under the circumstances, a constant menace to life and property. Provisions requiring that it be covered and that a screen be placed at the headgate, or that some other means be adopted for the protection of the public, are not unreasonable precautions.

The statute does not forbid or attempt to interfere with the use of the canal in carrying on appellant's business. It does not undertake to deprive appellant of its property or the enjoyment thereof. Appellant can without injury to the usefulness of the canal so maintain it as not to endanger the safety of life and property; and, as already in effect suggested, it has no constitutional right to perpetuate this danger. The fact that the perils against which the statute is aimed arise from the unexpected growth of the city since the incorporation of appellant and the construction of its canal does not affect the foregoing conclusions. Corporation v. The Mayor, supra; Fertilizing Co. v. Hyde Park, supra.

The heavy expense imposed upon appellant by the statute is unfortunate. But police regulations almost always impose burdens of greater or less magnitude, and therefore result in hardship. We cannot say that the statute was intended, as asserted by counsel, to bankrupt appellant and ruin its business. The act is general and applies to all canals of the dimensions specified, in cities of the first class, whether owned by corporations, partnerships or individuals. There is nothing upon its face to indicate that the members of the legislature thought at the time of its enactment of this or of any other particular canal. Courts will not presume dishonest or improper motives on the part of legislative bodies.

Considering the expense and magnitude of the work devolved upon appellant, sixty days seem to be a very short period for its completion. But we cannot as a matter of judicial cognizance declare that this time was absolutely in

sufficient. Courts never annul statutes merely because the legislative judgment or discretion is improvidently exercised. And we are not prepared to hold that the manner designated in the act before us for accomplishing the end in view and the time therein specified are so unreasonable as to indicate legislative malice or to justify judicial interference.

Finally, it is contended on behalf of appellant that by virtue of sec. 3, art. 15 of the constitution the legislature could not impose upon appellant the duty of covering its canal without providing for reimbursement of the expense incurred. Said section 3 reads: "The general assembly shall have power to alter, revoke or annul any charter or incorporation now existing and revocable at the adoption of this constitution, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of the state, in such manner, however, that no injustice shall be done to the incorporators." This provision does not relate to the exercise of the police power in regulating the transaction of corporate business. It recognizes a legislative right to alter, revoke or annul any part or all of the corporate charter; under it, the legislature may take away any portion of the powers, privileges and immunities expressly or by necessary implication granted to private corporations, provided protection against injustice be given. But the statute under consideration was not intended to alter, revoke or annul the charter of appellant or of any other corporation. Neither was it intended to take away any existing right, power or privilege conferred by such charter. It was, as already indicated, simply designed to so regulate the control and management of canals like that of appellant as to insure the protection of life and property.

The statute is not unconstitutional, and had appellant obeyed its command the accident would not have happened. The failure of appellant to perform its statutory duty in the premises was negligence per se, and no contributory negligence being shown, appellees were entitled to recover. Kein v. U. R. & T. Co., 90 Mo. 314; St. L. V. & T. H. R. R. v. Dunn, VOL. XVII.-25

70 Ill. 197; Wharton's Law of Negligence, secs. 442, 804, and cases cited. In support of the various propositions above announced, reference is made to the following additional citations: U. P. Ry. Co. v. De Busk, 12 Colo. 294; Cooley Const. Lim. (5th ed.) 710, et seq.; Tiedeman's Lim. of Police Powers, secs. 190, 191; Sedgwick's Con. of Stat. & Const. Law, p. 605, et seq. and notes; I. C. Ry. Co. v. Slater, 129 Ill. 91, and cases cited; Stone v. Mississippi, 101 U. S. 814; Beer Co. v. Massachusetts, 97 U. S. 25; Patterson v. Kentucky, 97 U. S. 501; Providence Bk. v. Billings, 4 Peters, 514; Rodemacher v. Railway Co., 41 Iowa, 297. The judgment of the court below is



1. PRINCIPAL AND AGENT.-When a special agent for the sale of real property exceeds the scope of his authority his prinicpal is not bound by the unauthorized act.

2. POWER TO SELL, NOT AUTHORITY TO GIVE OPTIONS.-Giving an agent authority to sell real estate at a fixed price does not of itself authorize such agent to give a third party a mere option to purchase.

3. RATIFICATION OF UNAUTHORIZED ACT.-Before a person can be bound upon the ground of ratification of an unauthorized act of an agent, it must appear that the principal had full knowledge of all the material facts affecting her interests in the transaction.

Appeal from District Court of Pueblo County.

ACTION for the specific performance of a contract. The contract is evidenced by the following written instrument: "PUEBLO, Colo., Jan. 6, 1887.

"Received of C. H. Small, agent, fifty ($50.00) dollars, being a payment on block 43, Pueblo, Colorado, corner of High and River streets. Terms of purchase being two thousand ($2,000.00) cash, assume mortgage of Dr. McDon

ald ($2,500), balance $5,000, to be paid in two years at 8 per cent. These terms to be fully carried out by said C. H. Small, agent, within sixty days, or sale to be void. If said terms are carried out by said C. H. Small, agent, within specified time, then Thomas M. Field, agent for Amanda E. Field to furnish Warranty Deed and Abstract, showing clear title to C. H. Small, agent. Whole price to be paid, $9,500. "(Signed) THOS. M. FIELD."

It is alleged in the complaint that Thomas M. Field was at the time of the making and subscribing of said agreement for the sale of the real property aforesaid, the agent of the defendant Amanda E. Field, and was lawfully authorized by said defendant for her and in her behalf to make and enter into such agreement and to sign the memorandum thereof. (This was before the amendment requiring such agency to be in writing. Sess. Laws 1887, p. 274.)

The defendant admits in her answer that her husband, Thomas M. Field, was her agent for the sale of this property, but denies that he was authorized to give the terms, mentioned in the instrument, sued upon. She alleges that being in pressing need of $2,000 in cash she authorized him to sell the property for not less than $10,000, provided she should receive an immediate cash payment of $2,000, and that his authority in the matter was strictly limited accordingly. She denies that the sale was concluded upon the terms set forth in the memorandum and alleges that the signature of Thomas M. Field, her husband, to the receipt was obtained fraudulently, in total ignorance of its contents. while he was in a condition of gross intoxication from excessive and protracted drinking, and upon the representation and assurance that the sum of $2,000 in cash, together with the deed for her signature, would be sent to her immediately. She avers that she had tendered back to plaintiff the fifty dollars paid to her husband, but that plaintiff had refused to receive the same. She also renews this tender.

The plaintiff in her replication denies that any fraud or

imposition was practiced upon Mrs. Field, and claims that defendant, with full knowledge of the terms of the sale embodied in the memorandum, ratified and confirmed the transaction.

The trial upon these issues resulted in a decree in favor of plaintiff for the conveyance of the property mentioned in the memorandum upon the terms therein specified.

Mr. CHARLES E. GAST and Messrs. RUCKER & TITCOMB, for appellant.

Messrs. WESCOTT & MCDANIEL, and Messrs. WELLS, MCNEAL & TAYLOR, for appellee.

CHIEF JUSTICE HAYT delivered the opinion of the court.

Considerable testimony was elicited upon the trial in the district court. This testimony was introduced largely upon the question of actual fraud in the procuration of the original memorandum from Mr. Field. The testimony from the defendant going to show that at the time of the transaction and for some time prior and subsequent thereto, Mr. Field had been in a state of gross intoxication, utterly unfit to transact business of any kind. The plaintiff, while admitting his intoxication to a certain degree, endeavored to show that at intervals he was capable of transacting business, and that at the time this memorandum was made he was sufficiently sober to understand its full scope and effect.

It is conceded that at the time of the purchase of this property by Mr. Small for his wife, he was the agent of Mrs. Field, and that for some time previous to this date he had had charge of collecting the rents, paying the taxes, etc., upon her property in Pueblo, including the property in controversy in this action. At the time the memorandum was signed it is apparent that Small was the agent for the sale of this property and that he had been endeavoring to procure a purchaser for the same for some days prior thereto. It is con

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