Arthur v. Gard

• Citation: 32 P. 343,3 Colo.App. 133
• Parties: ARTHUR v. GARD.
• Decision Date: 13 February 1893
• Court: Court of Appeals of Colorado

32 P. 343

3 Colo.App. 133

ARTHUR v. GARD.

Court of Appeals of Colorado

February 13, 1893

Appeal from district court, Park county.

Action by R.T. Gard against E.F. Arthur, lessee of the Hill Top mine, to recover on a duebill executed by defendant's superintendent. From a judgment in favor of plaintiff defendant appeals. Affirmed.

C.A. Wilkin, for appellant.

V.G Holliday, for appellee.

RICHMOND P.J.

E.F Arthur, appellant herein, was working the Hill Top mine as lessee, and in February, 1890, he executed the following paper: "Denver Colo., Feb. 24th, 1890. Mr. J.L. Edmunds, Denver, Colo.--Dear Sir: You are hereby appointed superintendent of the Hill Top mine, in full charge of the practical working thereof, getting out the ore, and hauling it to the cars at Fairplay, under the direction of the assignees of the lease. Your salary will be at the rate of two hundred dollars ($200) per month, commencing March 1st. Yours, truly, E.F. Arthur, Lessee." By virtue of this appointment, Edmunds entered upon the duties as superintendent of the mine, and on May 24, 1890, executed a paper payable to H.E. Box, in words and figures following: "Hill Top Mine, May 24th, 1890. Due to H.E. Box by the lessee of the Hill Top mine, one hundred and five dollars ($105.00) for sinking the main shaft 4X8 in the clear, and timbering the same complete, to the depth of 10 ft., at $10.50 per foot. J.L. Edmunds, Sup't." On the back of this was the following indorsement: "Payable June 15, by lessee. J.L. Edmunds. H.E. Box." On the 24th of May, 1890, R.T. Gard, appellee herein, purchased for a valuable consideration this duebill, and instituted action to recover from Arthur. By the complaint we are informed that the answer consisted of general and specific denials. A jury trial was had, and resulted in a verdict for plaintiff, upon which judgment was entered, and to reverse which appellant prosecutes this appeal.

The principal contention of appellant is that Edmunds had no authority to execute this paper, and consequently he is not liable. It is also insisted that the court erred in refusing instructions asked and in instructions given. The instruction complained of is designated as "No. 5," and set forth in the abstract. The other instructions are not embraced in the record. Under the ruling of the court, we would not be warranted in considering this assigned error. In the case of Bradbury v. Butler, 1 Colo.App. 430, 29 P. 463, it is laid down that where the instructions given by the court are not embraced in the transcript or printed abstract, no error can be assigned upon a single instruction. The language of the court in that case is: "It has been determined in construing a charge to a jury the entire charge must be considered, and where the appellant does not embrace within the transcript the entire charge given, the appellate court cannot determine whether or not the jury were misled by the charge to which exception was taken;" and also that the appellate court would be unable to determine whether the court erred in refusing the instructions asked, because of its inability to ascertain whether the entire charge embraced the instruction asked. McQuown v. Cavanaugh, 14 Colo. 188, 23 P. 341; Klink v. People, 16 Colo. 467, 27 P. 1062.

This brings us to the consideration of the main point relied upon by the appellant. The record and the evidence show that Edmunds was appointed superintendent by Arthur; that he was authorized to employ men in and about the working of the mine; that it was his custom to give time checks and bills evidencing the...