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As plaintiff has not shown a right to maintain the action, the judgment of the district court must be reversed and the cause remanded.



1. PARTY AS A WITNESS-CROSS-EXAMINATION.-A defendant testifying as a witness in his own behalf is subject to cross-examination as to previous declarations contrary to his testimony as given, the same as any other witness; and this, notwithstanding his supposed declarations might have been shown as a part of the plaintiff's case in chief.

2. OBJECTION TO EVIDENCE-EFFECT OF IT.-When an objection to material evidence is improperly sustained, and the result of the trial is adverse to the party against whom the ruling is made, the ruling may be made the ground for a new trial, unless there is something in the record showing that the sustaining of the objeotion to the question was a harmless error.

Error to District Court of Garfield County.

ACTION of unlawful detainer. Cravens was plaintiff below. The judgment was in favor of the defendant Bennett. The plaintiff brings the case to this court by writ of error.

Mr. J. W. TAYLOR, for plaintiff in error.

Messrs. BALLARD & HODGES and Mr. M. J. BARTLEY, for defendant in error.

MR. JUSTICE ELLIOTT delivered the opinion of the court.

The plaintiff below in his complaint having pleaded actual and peaceable possession of the premises in himself, alleged that defendant by plaintiff's permission had entered upon said premises to occupy the same temporarily as a ten

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ant or licensee of plaintiff, agreeing to move off whenever requested so to do by plaintiff; and further that defendant though duly notified to vacate and deliver possession of said premises, had refused so to do.

The defendant by his answer admitted his entry upon a portion of the premises described in the complaint, but denied that he entered as the tenant or licensee of plaintiff. On the contrary, he claimed the right to occupy and hold the same through and by another source of title.

The defendant being upon the stand as a witness in his own behalf, gave testimony tending to show his right to the premises in support of his answer. On cross-examination defendant was interrogated by plaintiff's counsel as follows:

"Didn't you state to H. R. Kamm, in his store in this city, during the month of January, 1885, that Cravens was making a bluff and trying to drive you off that land, and that you didn't claim that ground and didn't intend to, but you didn't intend to be driven off of it by Cravens; that all you wanted was the place where your mill stood and you were not ready to move from there yet and he couldn't make you, or words to that effect?"

To this question a general objection was interposed and sustained. Though the witness was a party to the record, so that the declarations supposed by the question, might have been shown as a part of the plaintiff's case in chief, nevertheless, the question was proper both in form and substance; it was in substantial conformity with the strictest rules of evidence; it pertained to matters material to the issue and was germane to the cross-examination. Certainly, there is nothing in the record to show that the question was obnoxious to a mere general objection; nor can we from anything in the record say that the sustaining of the objection to the question was harmless error. Nutter v. O'Donnell, 6 Colo. 260; Ward v. Wilms, 16 Colo. 86, and cases there cited.

The remaining assignments of error need not be considered. It appears from the record that the premises in controversy were, at and before the commencement of this suit, a portion

of the public agricultural domain of the United States. It was conceded on the argument that proceedings had been instituted in the U. S. Land Department resulting in a decision as to the question of title between the parties to this action. Hence, it would seem that further litigation under the issue in this case is no longer necessary. The judgment of the district court is reversed and the cause remanded.



1. DIRECTORS' COMPENSATION-ORDINARY DUTIES.-Directors of a corporation are not entitled to compensation for their services as directors, unless such compensation is provided for or expressly sanctioned by the charter.

2. SAME-EXTRAORDINARY SERVICES.-If a director render services to the corporation clearly outside of his duties as a director in pursuance of an antecedent appointment or employment by competent corporate authority,—that is, in pursuance of an express contract entered into in good faith, and the services be such as the company may legally contract for, he may recover compensation therefor. Quære: Whether a director may recover at all upon an implied contract; but held that he certainly cannot recover compensation for services rendered by himself to his corporation upon an implied contract, unless it be established by a clear preponderance of the evidence, first, that the services were clearly outside of his ordinary duties as a director, and, second, that they were performed under circumstances sufficient to show that it was well understood by the proper corporate officers as well as himself that the services were to be paid for by the corporation.

Error to District Court of Clear Creek County.

ACTION against a mining corporation by one of its directors to recover compensation as managing director. Judgment of nonsuit.

From the record it appears that the defendant below, "The Republican Mountain Silver Mines, Limited," was a

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mining corporation organized under the laws of Great Britain, and that it was engaged in the business of mining in Clear Creek county, Colorado, between the years 1880 and 1890; and, further, that J. Warren Brown, plaintiff below, was one of the directors and also the managing director of said company during most of said period.

The plaintiff Brown was a resident of Freehold, N. J., and had his place of business in New York city. He first became managing director of the defendant company in 1882. In this action he sues to recover the sum of fifteen thousand ($15,000) dollars as the value of his services as managing director for the period of five years from May, 1884. He makes no claim for compensation as managing director for the period prior to May, 1884, but admits that he received his share of the six hundred pounds per annum provided for the directors. He claims that he did not do as much for the company as managing director prior to 1884 as he did afterwards. He bases his claim to compensation for the five years following May, 1884, upon the ground that his duties as managing director were equivalent to those of general superintendent; that he exercised the combined powers of the board of directors, though subject to the board; that is, that he filled the place of mining superintendent, and, in addition, had the general direction of the affairs of the company.

The evidence, however, shows that the defendant company had a mining superintendent residing in Clear Creek county, Colorado, who gave special attention to the company's business, subject of course to the control and direction of the plaintiff as managing director; that plaintiff generally came twice a year to Colorado to look after the business of the company, particularly to give attention to certain litigation; that he did this prior to May, 1884, as well as afterwards; and that he also made several trips between London and New York on the company's business. The defendant company reimbursed plaintiff for traveling expenses and all expenditures of money made by him in behalf of the company,

so that this suit is based entirely upon his claim for compensation for services rendered as managing director during the five years aforesaid.

Plaintiff was one of the largest stockholders of the defendant company, owning about one half the entire stock, and a larger amount of the preferred stock than any other stockholder.

The following extracts from the charter of the defendant company were in force during the period covered by this litigation.

"Section 88. The office of a director shall be vacated if he accepts or holds any other office or place of profit under the company, except that of managing director, manager or agent of the company, or of a member of a local board or local committee of management.

"Section 90. *** The remuneration of the directors shall be a sum of £600 per annum, to be paid out of the profits of the company, and to be divided amongst them as they shall determine. The said remuneration of £600 to be increased at the rate of £50 for every two per cent of yearly dividend or bonus paid to the shareholders after the first ten per cent per annum, provided, always, that the said remuneration shall not begin to accrue until the company's mines are being worked at a profit."

"Section 91. If any director shall be called upon to go or reside abroad on the company's business, or otherwise perform extra services, the board may arrange with such direc tor for such special remuneration for such services, either by way of salary, commission or the payment of a stated sum of money as they shall think fit."

Messrs. MORRISON & FILIUS, for plaintiff in error.

Mr. CHARLES E. GAST, for defendant in error.

MR. JUSTICE ELLIOTT delivered the opinion of the court. At the close of plaintiff's evidence the district court upon

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