output of the mine. Taggart was not bound to buy a ton of coal. He might buy a thousand tons a month, all that the mine produced, or none. What he ordered he was bound

to receive, and pay for at the price agreed on. In some respects, chiefly relating to the obligation to pay for what he might order, it was like a contract of sale. In the absence of an obligation to order, take, or purchase any amount, definite or indefinite, it lacked an element which always accompanies a contract of sale. The company was obligated to fill any orders which Taggart might send, to the extent of their output, at so much per ton. The correlative promise by Taggart was in reality the assumption of an agency to dispose, as far as he might be able, of what the company might produce. The pith of the agreement, which was of advantage to the coal company, was the contract to work up a trade for their coal, which Taggart assumed. His compensation was in the price at which he was permitted to buy. Any breach of this agreement by Taggart without a legal excuse would necessarily subject him to a liability enforceable by action. The time specified in the contract for the duration of the agency is not essential to the liability. As a general thing, an agent may at any time renounce his employment, but he must do it in good faith, and in such fashion as not to injure his principal. When once he has entered on his employment, he may not renounce it without reasonable cause; and, failing in this, he will render himself liable for the consequences. Story, Ag. § 478; White v. Smith, 6 Lans. 5; U. S. v. Jarvis, Daveis 274; Elsee v. Gatward, 5 Term R. 143.

When the agreement is that he shall continue for a definite period, and he commences to do what he has promised, a fortiori will he be liable to respond in damages if he break his engagement without legal excuse.

When the company averred, and offered evidence tending to show, that Taggart had broken his contract in this particular, they were entitled to go to the jury on the question of damages without the burden of a stated liability, that the

sale was one which carried with it an implied warranty of quality. The plaintiff could doubtless insist that he had a right to withdraw from the engagement because of the failure of the company to furnish coal which was salable in the market; but he must assume the burden of showing that the coal was in general unsalable in the market. He might reject any particular lot sent on his order if it was not fairly within the designation of "merchantable coal," but a single failure would not warrant a rescission of the contract. He must show that it was not within the reasonable limits of the trade in coal, and that from its frequency it would be unjust to require him to continue his agency. This limitation should have been expressed to the jury in connection with the statement of the obligation to deliver merchantable coal.

A like difficulty arises from the rule of damages laid down. The difference between the price at which coal was to be sold to Taggart and that which the company realized after he renounced his engagement does not furnish the true basis of recovery. Whatever may hereafter be said of it as an element in the problem, it is not the principal term. That is to be found in the services agreed to be rendered, plus the cost of replacing them on the abandonment. The company introduced evidence which tended to show that, on Taggart's refusal to further continue to "push the sale" of their coal, they procured another agent to fill his place at some cost, and, so far as might be, themselves endeavored to sell the coal, at an added expense. This was the principal damage which they were entitled to recover, and it was error for the court to state the law otherwise. There might possibly have been an injury sustained in the matter of the price at which the company were, after the change, compelled to dispose of their product; but the difference in price is not per se a measure by which to determine the injury. In a special and limited sense it might be. Should the proof demonstrate that the company was only able to procure an agent to handle their production by conceding less advantageous terms to VOL. I-5

them in the matter of the price which the agent would pay, whereby their profits were diminished, such proof would entitle them to go to the jury on the question of a loss of profits as shown in the matter of price. On the other hand, if the new bargain was a more advantageous one to the company, it would, on a similar principle, reduce their recovery. The question of sales to purchasers generally, and the matter of profits resulting therefrom, can in no manner be said to properly enter into the solution of the question of damage. The jury was not properly instructed upon either of these matters, and the error of the court in these particulars compels a reversal of the judgment.

Reversed.

SEPTEMBER TERM, 1891.

J. B. WHEELER ET AL., APPELLANTS, V. JOHN WADE
ET AL., APPELLEES.

1. TOWN-SITE PATENT ISSUED IN NAME OF COUNTY JUDGE.-Where public land of the United States is occupied as a town-site, but the town is not incorporated, and the county judge of the county wherein the land is situate enters it in his own name under sec. 2387, Rev. St. U. S., "in trust for the several use and benefit of the occupants thereof," making payment of the government price therefor, he becomes invested with the legal title on receipt of the patent, and a deed from his successor in office will give a valid title as against one claiming through the authorities of the town, which became incorporated prior to the issuing of the patent.

Appeal from District Court of Pitkin County.

Mr. PORTER PLUMB and Mr. W. W. COOLEY, for appellants.

Messrs. WILSON & STIMSON, for appellees.

REED, J. On the 2d day of June, 1881, J. W. Deane was the county and probate judge of Pitkin county, and as such made application to enter, at the district land office, the town site of Aspen, under the provisions of the act of congress of March 2, 1867.

The application was accepted and the necessary money to perfect the entry was paid. From causes not necessary to be here stated the entry was suspended, and so remained until the 3d day of March, 1885, when the patent issued. The portion of the statute necessary to be considered is as follows, 2387, Rev. Stat. U. S. :-" 66 . . It is lawful, in case such town be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or tertory in which the same may be situated."

The granting clause in the patent issued is as follows: "Now know ye, the United States of America, in consideration,' etc., 'have given and granted, and by these presents do give and grant, unto the said J. W. Deane, county and probate judge aforesaid, and to his successors and assigns, in trust as aforesaid, the said tract above described, (describing the Aspen town site,) to have and to hold the same, together with all rights, unto the said J. W. Deane, county and probate judge as aforesaid, and to his successors and assigns as aforesaid.""

It appears that prior to the grant to Judge Deane the town had become incorporated. The corporate authorities assuming to succeed to the trust of Judge Deane, and assuming

the right to dispose of the lots of the town, published a notice requiring claimants to file their respective claims within ninety days.

One George E. Triplett, within the designated time, filed a claim to the lot in controversy in this case. Afterwards Byron E. Shear was appointed by the board of trustees of the town of Aspen a commissioner to take proofs and make conveyances to claims. On the 8th day of December, 1884, Triplett, being the only claimant to the lot in controversy, paid for the same, and took a conveyance from Shear as commissioner or agent of the corporate authorities of the town. The lot afterwards, by mesne conveyances, became vested in the appellants.

On the 8th day of October, 1885, Thomas A. Rucker became county and probate judge of Pitkin county, and the successor of Judge Deane, who had, as is alleged, assigned or transferred to him the property in trust for the purpose of the grant. While acting by virtue of his office as trustee he conveyed the lot in controversy to one Bermudy, who afterwards conveyed it to appellees.

Afterwards, in July, 1887, M. G. Miller became county and probate judge, and successor in trust under the grant to Judge Rucker, and proceeded to advertise and notify claimants of lots to make applications and proofs of claims, and perfect the title to town lots claimed by them respectively. Both claimants to the lot in controversy, feeling insecure in their respective titles, filed their claims to the property with Judge Miller, and this suit was brought by appellants, (plaintiffs below,) to determine which party had the better title, and which was entitled to a further conveyance from the then county and probate judge.

Upon the coming in of the answer, a hearing having been had, the suit was dismissed, and from such judgment of dis-. missal this appeal was taken.

The case of Mayor of Aspen v. Aspen Town & Mining Company, 10 Colo. 191, appears to be conclusive in this case, not only as a precedent but upon sound legal principles.