According to the well settled rule of this court, as well as that of other appellate tribunals, when the questions are purely of facts that have been determined by a court or jury, it will not interfere to set aside the finding, unless it is so manifestly unjust as to carry the conviction that it was the result of bias or prejudice. It is not enough that this court is of the opinion that it would have found the facts differently upon the evidence. Although there was a conflict of testimony, there was sufficient to support the finding. The scarcity of water in the stream was clearly shown by testimony of appellant, but this fact, instead of excusing it for acts of negligence, should have prompted it to the exercise of every practicable measure to utilize whatever water there was. Under the conditions and circumstances shown in this case, the results to the users of water, in a failure to supply it, are so disastrous and irremediable that the party contracting to supply it should not be exonerated from a failure to perform, except under circumstances clearly showing that the failure was chargeable to vis major, and not to negligence and inattention.

The judgment should be affirmed.

Affirmed.

EMMETT NUCKOLLS, APPELLANT, V. ROBERT M. ST. CLAIR, APPELLEE.

LIABILITY FROM FORMER COURSE OF DEALING-UNAUTHORIZED PROMISE. The owner of a farm on which he did not reside placed his son in charge, who bought hay therefor, which was paid for. Afterwards the farm was sold to a company, and the son, still remaining thereon, bought more hay therefor from the same party, without informing him who it was for, or who was to pay for it. The seller testified that the greater part was delivered and charged to the father before he learned of the change of ownership, when the bill was changed, the father and the president of the company being charged as partners. Payment not being made delivery was

stopped, when the son said his father would pay for the hay, on which assurance the balance was delivered. Held, that want of knowledge of the change of ownership, and reliance on the former course of dealing with the son, could only charge the father, if at all, up to the time the seller had notice of the change of ownership. The promise of the son could not bind the father for hay delivered after that time without proof of his authority.

Appeal from County Court of Arapahoe County.

Messrs. HARTZELL & PATTERSON, for appellant.

Mr. ENOS MILES, for appellee.

REED, J. This suit was originally brought before a justice of the peace by appellee, to recover payment for hay alleged to have been sold and delivered to Nuckolls & Rohrer. A trial was had, resulting in a judgment for the plaintiff,-an appeal taken to the county court. A jury was waived and trial had to the court, resulting in a judgment for the plaintiff for $264.55 against appellant, (Rohrer not served,) from which an appeal was prosecuted to this court. There was no controversy in regard to the delivery, quantity, or price of the hay, the only question being as to the liability of appellant for the payment of the debt. The hay was sold and delivered in September, October and November, 1889. The farm to which the hay was hauled, and where used, previous to April, 1889, was the property of appellant; about that date it was sold and became the property of the "Riverside Stock Farm Company." S. F. Rohrer was president and manager. Appellant resided in the mountains, and was only occasionally at the farm. While he was the owner, a son, Marshall, it appears remained at the farm, a youth of twenty or twenty-one years, and acted as the agent of his father. He remained there after the sale. In the spring, it is shown, appellant, through the agency of the son, bought hay from appellee and for which payment was made. The testimony of appellee shows the son to have been the purchaser of the hay in question, without having designated for

whom, or who was to pay for it; that appellee supposed it was for appellant, he knowing nothing of the change in ownership; that the hay, until a greater portion of it had been delivered, was charged to appellant, then, that he was informed by Ezra, a younger son, that Rohrer was connected with it, and that he would pay for it; that the bill was then charged to Nuckolls & Rohrer as partners; that payments were not made, and the delivery of the hay stopped; that the son, Marshall, said his father would pay for it, upon which assurance the balance was delivered.

The testimony was conflicting and unsatisfactory. Appellant could only be charged by reason of the former transactions through the agency of the son, and a want of knowledge on the part of appellee as to the change that had taken place; his liability cannot be predicated upon the promise of the younger Nuckolls, that his father would pay it. No agency, authority or power of the son was shown to bind the father by a promise to pay.

It is undisputed, that before the delivery of all the hay, when about three fourths had been delivered, plaintiff was informed that appellant was not the purchaser, or sole purchaser. He was sufficiently informed to put him upon inquiry as to who was the purchaser, and as to the authority of the son to bind the father by a promise to pay. If by reason of want of knowledge of the change, and resting upon the former course of dealing, appellant could be made liable, his liability could only extend to the time plaintiff was informed, or should have been put upon inquiry; and I cannot see, without an established agency of the son, how the defendant could have been held liable for hay delivered after that time. It is doubtful if evidence of former dealing and want of notice was sufficient to charge the defendant with any part of the bill, but we do not put the decision of the case upon that ground, but upon a new trial evidence upon. these points should be more satisfactory and conclusive. It was clearly erroneous to embrace in the judgment that por

tion of the claim contracted after notice, without proof of agency of the son and authority to bind the father.

The judgment will be reversed and cause remanded for a new trial.

Reversed.

W. C. BRADBURY & Co., APPELLANTS, v. T. A. BUTLER & SON, APPELLEES.

1. RIGHT OF COURT TO EMPLOY CERTAIN FORMS AND RULES OF PRACTICE. In the prosecution of a proceeding which comes within a recognized class of actions, the forms and rules applicable to that class may be adopted. So a proceeding to enforce a mechanic's lien, being of an equitable nature, it comes within the rule which recognizes the right of the court to submit questions of fact involved to the determination of a jury.

2. WAIVER OF OBJECTIONS TO JURY TRIAL IN MECHANIC'S LIEN CASE. -Where the only issue, in a proceeding to enforce a mechanic's lien, is a question of fact as to the amount of the plaintiff's claim, and the defendants being present in court, a jury is called to try this issue and determine the amount due, no objections being interposed by defendants, but they introduce their evidence and participate generally in trial of the issue, they are not in position to complain that the court should have referred the matter to a referee to ascertain and report upon the sum justly due on the claim made, as permitted by statute in such case.

3. RIGHT TO LIEN NOT AN ISSUE FOR JURY.-The determination of a question of fact by a jury in a mechanic's lien proceeding, and the adoption by the court of the finding does not necessarily involve the right of the plaintiff to a lien.

4. EVIDENCE OF USAGE AND CUSTOM.-When parties contract on a subject-matter concerning which known usages prevail they incorporate such usages, by implication, into their agreements, if nothing is said to the contrary; so where the contractors for the excavation and construction of an irrigating ditch employed subcontractors to perform part of the work, but the contract omitted to state upon what engineer's report the estimates of work and labor were to be based, it was proper to admit evidence of custom to determine the point.

5. OBJECTIONS TO INSTRUCTIONS-ENTIRE CHARGE TO BE CONSIDERED. -In construing a charge to a jury the entire charge must be consid

ered, and when appellant does not embrace within the transcript the whole charge given, a court of review cannot decide whether a party was prejudiced or not by the refusal to give instructions prayed by him.

Appeal from District Court of Pueblo County.

Messrs. HARTZELL & PATTERSON, for appellants.

Messrs. BETTZ & VATES, for appellees.

RICHMOND, P. J. In the year 1890 W. C. Bradbury & Co. had a contract for the construction of an irrigating ditch, known as the Bob Creek Canal. Mr. Bradbury let subcontracts, among which was one to the appellees, T. A. Butler & Son, for the doing of a certain portion of work. The contract was let in the month of March, 1890, and was completed the last of May, same year. At the completion of the work Bradbury & Co. were unable to agree with Butler & Son upon the amount of earth, stone and other material excavated and filled, and the prices to be paid therefor. Certain payments had been made in the course of the work, and this contention only related to the final payment to be made by Bradbury & Co. No satisfactory agreement having been arrived at Butler & Son, within the statutory time for filing a lien, filed their lien notice with the proper authorities and commenced suit in the district court of Pueblo county for foreclosure of the same. To this complaint an answer was filed and the case came on for trial on the 19th day of June, 1891. The court summoned a jury and submitted the issues in the case to them. Testimony was taken and verdict found in favor of plaintiffs for the sum of $2,142.38, and upon this judgment a decree was entered foreclosing the lien and ordering a sale of the canal, unless payment be made and the decree complied with in all respects.

The foregoing is the statement of the case as made by appellants, and is accepted as correct by counsel for appellees, with the exception that appellants erred in stating that the