tending to show a breach of the contract by plaintiff; then offered to show that he was damaged in his business by reason of the breach of the contract of the plaintiff in refusing to permit him to reinsure the business or cancel the business pro rata. He further offered to show that by the contract of reinsurance entered into by the plaintiff with The Hartford Fire Insurance Company the business upon his books evidenced by the expiration list was turned over to The Hartford Fire Insurance Company and all his expirations thereby disclosed; that these expirations and the secrecy of the same which belonged to his business were valuable; that under the terms of this contract had he been permitted to reinsure or cancel, his businèss would have been protected and his expiration list kept secret, whereas, by its being disclosed, its value was destroyed. The court refused the offer.

From the briefs of counsel it seems that the ruling of the court in rejecting the evidence was because the counterclaim did not state facts sufficient to constitute a cause of action. We fail to see wherein the counterclaim is so defective. It appears plaintiff agreed with the defendant that if it retired from the agency business at Denver nothing should be done to disturb the business on the books; that he should have the option of reinsuring the business in plaintiff's company upon his books or of cancelling the policies at pro rata rates. This was a valuable right to defendant, as it would be to any agent with business on his books. This right, according to the allegations of the counterclaim, was violated. From the violation of the right nominal damages at least ensued. While we express no opinion as to what is a measure of damages in such case, we think the lower court erred in refusing to permit defendant to introduce evidence to sustain his allegation of damage.

Judgment reversed.

Reversed.

[No. 2178.]

ARNETT V. HUGGINS.

1. Mortgages-Wrongful Sale by Mortgagee-Measure of Damage-Conflicting Instructions.

In an action for damage for a wrongful sale of land by defendant which plaintiff had mortgaged to defendant by a deed absolute in form and for refusing to permit plaintiff to redeem, where the court in one section of its instructions told the jury that the measure of damage was the difference between the sum of the liens on the land and the amount for which it was sold by defendant, provided it was not sold for less than its market value, and in another section that the measure was the difference between the market value at the time of sale and the price for which it was sold by defendant, and in another section that plaintiff was entitled to recover the entire purchase price with interest, and it does not appear which rule the jury adopted, even if any one of the rules laid down for the measure of damage was correct, the instructions are so conflicting that a verdict and judgment based thereon should be reversed.

2. Same.

In an action for damage for a wrongful sale by defendant of land held by him under a deed from plaintiff absolute in form but in fact a mortgage, and for refusing to allow plaintiff to redeem, where the answer tendered other issues and there was evidence tending to support them, it was error to instruct the jury that the only question before it was the measure of damage.

Appeal from the District Court of Boulder County.

Messrs. DUNCAN & ANDREWS and Messrs. IVES & HOUSTON, for appellant.

Mr. O. A. JOHNSON, for appellee.

Mr. T. M. ROBINSON, of counsel.

GUNTER, J.

This was an action to recover damages for an alleged breach of contract. Plaintiff had verdict and judgment. Defendant appealed. The complaint alleged that one Huggins owning certain real estate borrowed money of defendant and conveyed the real estate to her, that she executed a contract to recon

vey to him all interest in the realty so acquired on the payment to her of the money borrowed with legal interest, that Huggins assigned this contract to plaintiff, that she made a tender of the money loaned with interest and demanded a reconveyance of the prop erty, that defendant refused, and still refuses, to make the conveyance.

Judgment was prayed for damages claimed to have been sustained through the alleged breach.

Defendant denied that plaintiff had sustained any damage by the alleged breach of contract, and set up affirmatively the existence upon the property at the time of the conveyance from Huggins to defendant of a trust deed and tax liens, that whatever interest Huggins had in the property conveyed at the time of the alleged breach was inferior to such trust deed, tax liens and lien created by the loan of defendant, that the value of the property was less than such aggregate liens, therefore, no damage was sustained by failure to reconvey.

There was evidence tending to sustain the allegations of the respective parties. One of the material questions for the jury to determine was the amount of damage, if any, sustained by plaintiff through the alleged breach of the contract. It appeared that defendant had sold and conveyed the property to a third party. In one section of the instructions the jury was charged that the measure of damages sustained by plaintiff was the difference between the sum of the above mentioned liens and the amount for which defendant sold the property, provided the land involved was sold for not less than its market value. In another section of the instructions the jury was told that the measure of damages to be applied was the difference between the market value of the land at the time it was sold and the price for which it was sold by the defendant. In a third sec

tion the jury was charged that the plaintiff was entitled to recover the entire purchase price paid to the defendant and interest thereon at 8 per cent. per annum since payment thereof. It is apparent these instructions were in conflict. The evidence was contradictory as to the amount of damages, if any, sustained by plaintiff. It is impossible to determine which one of the rules laid down for the measure of damages the jury adopted; if any one of the rules so announced were correct-which we do not holdthe conflict between them would necessitate a reversal. In another instruction the jury is told that the only question before it was the measure of damages. The assumption that this was the only issue was not justified; the answer tendered other issues, tending to support some of which there was evidence.

The judgment should be reversed.

[No. 2173.]

Reversed.

MCMULLIN V. THE BOARD OF COUNTY COMMISSIONERS OF MONTROSE COUNTY.

1.

Officer's Fees-Right to Receive-Performance of Service. The right of a public officer to demand and receive fees for services depends upon the rendition of the services.

2. District Attorneys-Fees-Performance of Service.

A district attorney is not entitled to demand and receive commission from a county upon a sum received by the county in settlement of a suit against the county treasurer and sureties upon his official bond to recover a shortage in the treasury fund, where the suit was brought by the county attorney and the only thing the district attorney did in connection with the suit was to request that his appearance be entered for the county which was done upon motion of the county attorney, the suit having been compromised and settled for a smaller sum than that claimed shortly after the entry of the appearance of the district attorney and dismissed by the county attorney, the district attorney taking no part in such settlement although the district attorney was ready and willing to perform any necessary service connected with said suit had he been requested to do so by the county attorney or commissioners.

Appeal from the District Court of Montrose County.

Mr. S. D. WALLING, Mr. H. M. HOGG and Mr. S. G. MCMULLIN, for appellant.

Mr. JOHN GRAY, for appellee.

WILSON, P. J.

This case is presented upon an agreed statement of facts, from which the following appears: There being an alleged shortage in the funds of the county treasurer of Montrose county, amounting to $12,222.93, the county attorney of said county by direction of the county commissioners instituted a suit in the district court of the county in the name of the people of the state of Colorado for the use of the board of commissioners against the treasurer and his bondsmen for the recovery of the amount of such shortage. There were in all eight defendants. Subsequently, three of the defendants appeared and filed motions to quash the summons which had been served upon them, alleging among other grounds therefor that the action was not brought nor the suit prosecuted by any party authorized to bring the same under the laws of this state; that during one of the days of the term of the court during which the action was pending, the plaintiff, who was the district attorney of the district in which Montrose county was situate, informed the county attorney that he believed it to be his duty to appear in the action, and thereupon on motion of the county attorney, the court entered plaintiff's appearance as district attorney for the plaintiff in that action. That thereafter the plaintiff as district attorney was at all times ready and willing to do whatever might be necessary with relation to said suit, and that neither the said John Gray, county attorney, nor the board of county commissioners of Montrose county ever thereafter re