Yes. (2) What was the value of the unmortgaged property which was sold? A. $302. (3) Were the goods mentioned in the second cause of action, or any portion of them, lost to the plaintiff through the carelessness or negligence of the defendants, Lewis and Dobbins? If so, what were the goods lost or stolen? A. Yes, to first clause of this question. A. To second clause of question: Goods as per appended list were lost or stolen. (4) If you an swer 'Yes' to this third question, what was the value of that property? A. $250." Thereupon defendants moved for judgment on the verdict, and assigned the following reasons: Because it appears from the record, to wit, the complaint, answer, and verdict, that the defendants were authorized by plaintiff to sell the property mentioned in the complaint, and credit the proceeds arising from such sale on the Lewis chattel mortgage; and because the plaintiff should have included the property mentioned in the action for an accounting brought by said plaintiff against said defendants in cause No. 9,180, in this court; and because the defendant Lewis offers hereby to credit said plaintiff with the value of the goods lost through defendants, as appears in the special finding in said verdict, to wit, $250 on said chattel mortgage debt, in the said action for an accounting in cause No. 9,180. motion was denied, and defendants pray an appeal.

The

The evidence in the case is not saved by the bill of exceptions or recited in the abstract of record. The briefs filed by the respective parties leave us in some doubt as to what our conclusion might have been if the cause was properly presented by the transcript and bill of exceptions. But, in the absence of such a record, we are utterly unable to determine what should be done, and, inasmuch as the jury have passed upon the single issue made by the pleadings against the defendants, and the court has adopted such finding, and entered judgment thereon, we are warranted in saying that the judgment must be affirmed.

(2 Colo. App. 126)

DENVER, T. & FT. W. R. Co. v. SMEETON. (Court of Appeals of Colorado. April 25, 1892.) GARNISHMENT EVIDENCE OF INDEBTEDNESS-ASSIGNMENT OF UNEARNED WAGES.

1. In garnishment proceedings, the garnishee having denied its indebtedness to the debtor, the creditor cannot have judgment against it without proof of the debt.

2. An employe may assign his wages for a certain time to come, and his employer, having accepted the assignment, cannot be made liable to another creditor of the employe as garnishee.

Error to Arapahoe county court; GEORGE W. MILLER, Judge.

Garnishment proceedings by Mrs. C. C. Smeeton, as administratrix, against the Denver, Texas & Ft. Worth Railroad Company, as garnishee of James A. Semple. There was judgment against the garnishee, and it brings error. Reversed.

Teller & Orahood, for plaintiff in error. BISSELL, J. By proceedings in garnishment, Mrs. Smeeton, the defendant in er

ror, attempted to recover of the railroad company a debt which she claimed was due her from James A. Semple. Semple's indebtedness was not very clearly established, but, for the purposes of this decision, it will be assumed that he was a Judgment debtor, and that the proceedings anterior to the rendition of judgment against the garnishee were regular and sufficiently established. The judgment creditor cannot recover, even with this concession. The creditor who attempts to enforce the alleged liability of one who owes his debtor by the aid of this process must show, by sufficient and satisfactory proof, that the garnishee is obligated. The cases are in harmony upon this proposi tion. Railway Co. v. Gibson, 15 Colo. 299, 25 Pac. Rep. 300. There was no effort on the part of the attaching creditor to bring her case within this settled rule of law. The railroad company denied its indebtedness, and this cast the burden of proving the debt, if any existed, on the creditor. No evidence was offered which disclosed the relations between Semple and the railroad company. There was no attempt to show the employment of Semple, the contract under which he was hired, the wages he received, or the time he had been employed. Without proof covering these several propositions, judgment could not be entered against the company. None of them were embraced in the evidence, and the recovery cannot be upheld. In addition to this difficulty, there was an equally insuperable obstacle to the plaintiff's recovery. Prior to the time that the writ was served on the corporation, Semple had assigned his wages for the month of September to a third person, for a valuable consideration paid to him at the time of the transfer. The company accepted the assignment, and thereafter were only liable to the assignee for whatever might become due to Semple during that time. There is no rule of law which inhibits this proceeding. All of a debtor's tangible property, save what may be exempt from execution, is liable to be seized in satisfaction of his debts. His labor is not equally available to the creditor for the purposes of satisfaction. He may sell it, or give it away, or dispose of it in such manner as he pleases, and, if the transaction infringes no established legal principle, the creditor is remediless. Abbey v. Deyo, 44 N. Y. 343; Rush v. Vought, 55 Pa. St. 437. If the laborer sees fit to sell his wages for a year for a fixed consideration, which the employer is willing to advance to him at the commencement of the hiring, there is no method by which the creditor can attach that labor, unless he is able to reach the tangible results which have passed into the possession of the debtor himself. principle, there seems to be no good reason, if this be true, why his right to wages may not be assigned for a valuable consideration then paid, providing the purchaser is willing to take his chances upon the completion of his contract, and the employer is willing to accept the assignment, and agree to pay the assignee whatever may be earned during the continuance of the agreement. These considerations demonstrate the error into which

On

the court fell in rendering judgment for the attaching creditor. The case must be reversed and remanded.

(2 Colo. App. 135)

MCLAUGHLIN et al. v. THOMPSON. (Court of Appeals of Colorado. April 25, 1892.) LOCATION OF MINING CLAIM-PROSPECTING CON

TRACT-LACHES.

1. Where two persons enter into a prospecting agreement, which provides for the joint prosecution of the labor, the agreement includes the continuance of the work until a valid location is made on a legal discovery; and, should one of the prospectors quit work, and the other continue until he finds a vein, the former has no interest in the discovery, unless he has provided therefor by subsequent agreement.

2. Plaintiff entered into a prospecting agreement with one of defendants, which provided for the joint prosecution of the labor. "Held that, conceding a subsequent agreement whereby defendant was to continue the work until a vein was struck, plaintiff was barred by laches where for seven years after the discovery he rested on his rights, and failed to perform any labor on the claim or furnish any money for the enterprise.

Appeal from district court, Pitkin county; THOMAS A. RUCKER, Judge.

Action by Richard Thompson against James McLaughlin, Ottawa Brown, and Henry C. Bates to recover an interest in certain mining property. Judgment for plaintiff. Defendants appeal. Reversed.

Wilson & Stimson, Clinton Reed, C. S. Thomas, and Bryant & Lee, for appellants.

Mc

The

BISSELL, J. There is no appearance for the appellee. His cause is without equity; and he could not have successfully supported the decree, though judgment passed in his favor. In the latter part of November, 1880, Thompson and James Laughlin started prospecting work on Smuggler mountain, on a piece of ground which they named the "Jay Gould." agreement contemplated, although it was not thus directly specified, that they should prosecute the work until they could make a valid location. It will be well to note here two allegations in the complaint, one of which may be said to be supported by the proof, and the other to be wholly variant therefrom. The first is that Thompson was to assist in doing the "discovery work" on the location. Just the extent to which the pleader intended to go by that averment is not very manifest. It is palpably true under the mining statutes that work properly within that description must be continued until there is uncovered a vein or deposit of mineral. It is not an unfair construction of the pleading to take the allegation as intended to be broad enough to embrace whatever, under the mining statutes, would be included in this term. Under this construction, then, the plain. tiff averred that he and McLaughlin agreed to sink the discovery shaft to mineral, and thereby make a valid location. This allegation seems to be fairly within the purview of Thompson's own testimony, and to be substantially supported by the evidence. There is another averment about which so much cannot be said. Generally it states that by the terms of

the agreement McLaughlin was to do Thompson's share of the assessment work until he should dispose of his interest. This is totally unsupported by the testimony. It will be observed that this part of the alleged agreement does not necessarily exclude the idea that Thompson remained obligated to do his part of that discovery work which must precede a valid location. This much he is bound to do by the contract as he states it, and by the terms of it according to his own evidence. This is an important consideration, on the hypothesis which will be subsequently stated, that there was an absolute failure to acquire any title which McLaughlin was bound to protect, even under the agreement to do the annual labor, had that part of the contract been sustained by sufficient proof. The work was continued on the claim until about election time in November, when Thompson left Aspen, and went to Leadville. At this time the discovery shaft had been sunk some distance in the wash, probably somewhere between 25 and 40 feet. At this time Thompson ceased to do work, or to contribute to the expense of it, and this situation gives rise to one of the controversies in the case. To overcome the very apparent legal difficulty respecting his title, he testified at the trial that the agreement between him and McLaughlin was that McLaughlin should take up the work at the point which he had reached when the contract was made, and sink the shaft to mineral for a half interest in that very shadowy thing,—a mining location without any discovery. Under the pleadings he was not entitled to make proof of any such agreement. He had not averred it, and he should not have been allowed to prove it. There was no application made to amend the complaint to correspond with the proof, and the case stands with a decree entered upon testi. mony which could not have been legiti mately offered under the pleadings. But the case in this aspect was not so supported by testimony as to entitle the plaintiff to a decree. It was directly disputed by the defendant McLaughlin, whose denial was supported by the whole conduct of the plaintiff. It is probably true that this court would be indisposed, in opposition to the finding of the court in regard to the facts, to disturb the decree because it was not in its judgment supported by the evidence. Since the cause must be reversed on other grounds, the error committed in rendering a decree upon evidence which contradicted the case as the plaintiff la'd it justities the court in stating that in its judgment this part of the plaintiff's contention is entirely unsupported. But for this reluctance to disturb the findings of a trial court upon the evidence, the reversal would be put upon this naked proposition, viz.: That at the time Thompson quit work on the claim, in November, 1880, there had been no discovery of mineral, and, since he failed to continue the prosecution of his discovery work to mineral, or to contribute thereto, no subsequent discovery and valid location by the labor of his original partner, without contribution

from him, or some agreement with regard to it, could inure to his benefit. It is a very common notion among prospectors in this country that if they sink a shaft, which they call a "discovery shaft," to a depth of more than 10 feet, and put up their stakes, they acquire thereby some sort of an interest in the public domain, although within the limits of their shaft or cut there may be no indications whatsoever of a vein or mineral deposit, and work has ceased. Whatever may be the comity in respect of this matter among miners and prospectors, as a matter of law such a location is absolutely worthless for any purpose. It is equally true that, if two men enter into a prospecting agreement, which provides for their joint prosecution of the labor, in law this agreement will be taken to include the continuance of the work until a valid location is made on a legal discovery. Should one of the prospectors quit the work, and the other one continue until he finds a vein, the reward is his, and in it the laggard will have no interest, unless he has provided therefor by an agreement with the diligent partner.

Since this position is predicated upon a disagreement with the trial court as to the evidence, the judgment will not be rested solely on this proposition. There is another principle of equity jurisprudence which is equally conclusive upon the plaintiff's rights. The doctrine of laches and its consequences is as well established as any other rule in equity. It is not often that a case comes before a court which so emphatically demands the application of the principle as the one under consideration. Thompson quit work early in November, 1880. He returned to Aspen in the spring of 1881, and remained through the summer. Before he got back, McLaughlin, who had continued the work during his absence, completed the location, and filed his location certificate. During Thompson's stay McLaughlin was engaged in sinking the shaft. The date of the actual finding of mineral is not very clear. At all events, the location certifi cate was on record, and did not contain the name of Richard Thompson. McLaughlin carried on the work in conjunction with Markell while Thompson was in Aspen. The shaft was sunk upwards of 100 feet, and a drift of about 50 feet was run from the bottom of it, and in many ways there were indications of a very vigorous prosecution of the enterprise, and the expenditure of considerable money on the part of those in possession. Thompson paid no attention to it, manifested no interest in the matter, made no assertion of any claim or right with respect to the property, and in many ways failed to do those things which any minor would have done if he thought he still retained an interest in the claim. In the fall of 1881 he left Aspen, and did not return until July, 1888. During all this time he gave no heed to the property, paid no part of the expenses of the location and development, and contributed nothing whatever towards the annual labor required by the mining statutes. It is true that in his complaint he sought to avoid the great v.29p.no 11-52

force of this neglect by an averment which put the burden of doing the entire work on McLaughlin. He did not prove it, nor did he offer any evidence whatever to support this allegation. This fact may then be taken to the extent of its fullest significance as bearing upon the matter of the laches. By the joint efforts of McLaughlin and Markell the location seems to have been developed by the discovery of mineral into a valid mining claim. They applied for a patent in 1883, and obtained a receiver's receipt. These proceedings did not stir Thompson to the assertion of his rights, and he did nothing until he filed this bill in September, 1888, for the specific performance of his alleged contract. There were sundry complications about the title springing from a transfer which had been made by McLaughlin to Ottawa Brown. Nothing will be gained by either stating or discussing the effect of the conveyance, or the interests acquired by it, since the general finding will leave her rights and those of McLaughlin to be settled inter partes. Reasonable diligence is always necessary to incite the activity of a court of equity. "The strongest equity may be forfeited by laches or abandoned by acquiescence." Whenever a party desires to enforce an equitable interest in property so fluctuating and uncertain in value as a mining claim, he must be careful to avoid an unreasonable delay. The true doctrine in these cases was very fully and accurately expressed in an able opinion by the present chief justice of the supreme court, and reannounced in the later opinion of De Mares v. Gilpin, infra. It need not be restated, nor would it be profitable to discuss the reasons supporting the principle. The facts of the present controversy compel a rigid and unhesitating application of the rule. Thompson slept upon his rights for such a length of time that he cannot be permitted to come into a court of equity and ask a decree. Great Western Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 Pac. Rep. 908; De Mares v. Gilpin, 15 Colo. 76, 24 Pac. Rep. 56S. Any further citation of authorities on this subject would be useless, since these two cases fully express the law on this subject. The plaintiff may not recover, either under the case as he made it, or under the proofs concerning his delay. The case is reversed and remanded, with directions to the court below to enter a decree in conformity with this opinion.

(2 Colo. App. 141)

SULLIVAN V. LEER. (Court of Appeals of Colorado. April 25, 1892.) SALE OF REAL ESTATE-AUTHORITY OF AGENT.

In a suit for the specific performance of a contract by C., as agent of defendant, to convey certain lots, it appeared that the lots were situated in D., where such agent resided. That on March 30, 1889, defendant wrote the agent: "I will be in D. last of April or first of May. Wish you would have a purchaser. Think I ought to get $17,000, as there is quite a boom in D. real estaté." That on April 20th the agent telegraphed defendant, "Lots sold for $16,000 cash. Mailed you deed for signing to day;" to which defendant replied, "Won't sell for less than $17,000; be there May 1st." On May 3d, the day of her arrival in D., the agent telegraphed to her, "Sold