wholly insufficient in this respect. Not being able to discover any abuse of discretion on the part of the trial court, the judgment will be affirmed. Affirmed.

BARNEY et al. v. McCLANCY. (Court of Appeals of Colorado.

MORTGAGES FORECLOSURE

April 9, 1900.) COMPLAINTELECTION TO DECLARE WHOLE DEBT DUE-APPEAL AND ERROR.

1. A complaint for the foreclosure of a mortgage, providing that, upon default in the payment of any one of several notes, the mortgagee may elect to declare the whole debt due, is not bad on demurrer, where action is brought upon default in the payment of the first note falling due, for failure to allege an election to declare the whole debt payable, since the commencement of suit, and demand for a foreclosure for the entire sum, are a sufficient election.

2. The findings of fact by the trial court cannot be reviewed, where the evidence has not been preserved.

Appeal from district court, Boulder county. Action by M. J. McClancy against Harry E. Barney and another for the foreclosure of a mortgage. From a judgment for plaintiff, defendants appeal. Affirmed.

Samuel H. Baker, for appellants. Richard H. Whiteley, for appellee.

THOMSON, J. This was a suit to foreclose a mortgage of real estate. The mortgage was executed on the 4th day of March, 1896, by Harry E. Barney, to secure the payment to Uriah McClancy of four promissory notes of the same date, executed by him, for the sum of $100 each, due respectively in one, two, three, and four years, with interest at 10 per cent. per annum from date. The mortgage provided that upon the failure by the mortgagor in the performance of any of his covenants, promises, or agreements, the entire sum represented by the notes should, at the election of the holder, become due and collectible,-notice of the election being waived by the mortgagor,-and the mortgagee or his assigns might proceed to a foreclosure, for the purpose of satisfying and paying the entire indebtedness secured. The mortgage also provided for a reasonable attorney's fee, to be charged against the property in case of foreclosure. This proceeding was commenced on the 1st day of June, 1897,-some time after the maturity and nonpayment of the first note, by M. J. McClancy, the assignee of the notes. Foreclosure was sought for the entire indebtedness. The Silver Spruce Ranche Company, a purchaser of the mortgaged premises from the mortgagor, was made a party defendant.

There was a demurrer to the complaint, which was overruled, and the defendant answered. The complaint was not very specific in its statements, but it was good after answer. It did not aver an election by the plaintiff to claim the entire amount as due and collectible, but the commencement of the

suit, and the demand in the complaint of a decree of foreclosure for the entire amount, was a sufficient election. The answer averred a tender made, before the suit was brought, of the amount of the first note, that being the only one which, by its terms, was then due, and also put in issue other averments of the complaint. The replication denied the tender. A decree of foreclosure was rendered, with an order for a judgment for deficiency against the mortgagor. Ar attorney's fee of $100 was allowed. It appears from the court's findings that evidence, both oral and documentary, was introduced at the trial. None of the evidence has been preserved. The findings are sufficient to support the decree, and we must presume that the proo warranted them. The judgment is affirmed. Affirmed.

FIRST CONGREGATIONAL CHURCH OF
CRIPPLE CREEK v. GRAND RAPIDS
SCHOOL-FURNITURE CO.

(Court of Appeals of Colorado. April 9, 1900.)
CORPORATIONS-ESTOPPEL TO DENY CORPO-
RATE EXISTENCE-SALES-TI-
TLE OF VENDEE.

1. The purchase of goods from a corporation, and the execution of a note to the corporation, as such, for the payment thereof, will estop the maker of the note, in an action thereon, from denying the existence of the corporation.

2. The purchase of goods, and the execution of a note in payment thereof, reciting that the title to the property shall remain in the vendor until the purchase price is paid, is not a conditional sale, but vests an absolute title in the vendee, and renders him liable for the price, if the property is destroyed by fire.

Appeal from El Paso county court.

Action by the Grand Rapids School-Furniture Company against the First Congregational Church of Cripple Creek upon a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Horner, for appellant. William H. Nash, for appellee.

BISSELL, P. J. The Grand Rapids SchoolFurniture Company of Michigan brought suit in the county court of El Paso county against the First Congregational Church of Cripple Creek, a Colorado corporation; and the cause of action stated was on a promissory note dated the 1st of July, 1895, whereby, six months after date, the church promised to pay to the order of the furniture company $488.32, at Cripple Creek, with exchange, for value received, with 8 per cent. interest. There was attached to the note, and made a part of it, a recital that the note was given for the purchase price of 267 chairs. It was further agreed that the title to the property should remain in the furniture company until the purchase price was paid, and in case of default the property might be taken back at the expense of the maker. The complaint stated a partial payment, alleged a balance due, its

nonpayment, and demanded judgment. The church denied the corporate existence of the plaintiff, and, as affirmative defenses, set up what may be summarized in a statement that the title to the property did not pass, and that while it was in the possession of the church a fire occurred, and the chairs were burned up, and the plaintiff thereby rendered unable to deliver on performance. The plaintiff demurred to the defenses. The demurrer was sustained, judgment entered, and therefrom this appeal was prosecuted.

The statement of the case virtually disposes of the appeal. The first proposition, respecting the denial of the incorporation, is easily disposed of. The abstract recites that the plaintiff made no proof of its corporate existence when it took judgment. This is answered first by the suggestion that the record itself does not support the contention, and we are not thereby advised that the plaintiff did not offer full proof. Whether this be or be not true, it is immaterial, since it is well settled in this state, as in all other jurisdictions, that it is not open to a person who has dealt with a corporation, recognizing it as such, to deny the corporate existence. Plummer v. Mercantile Co., 23 Colo. 190, 47 Pac. 294; Lumber Co. v. Cotton, 12 Colo. App. 375, 55 Pac. 610. This case is brought directly within the purview of that principle, because it appears from the statement of the cause of action that the church dealt with the furniture company as a corporation, bought the goods of it, executed to it its promissory note for the purchase price, and delivered it in settlement of the sale. Having done this, it cannot, when sued on its paper, plead this defense. The next matter-being the several defenses growing out of the transaction-may be as briefly disposed of, because the underlying principle which renders the pleas of no avail has been declared by the supreme court. The theory of the defense was that the defendant church acquired no title to the goods; that the sale was a conditional one, and, since thereby the property did not pass, the loss must fall on the vendor. The contention is not based on fact, or on the legal result of the transaction. The sale was not a conditional one. Notwithstanding the terms and conditions expressed in the agreement attached to the note, the sale and the delivery of the chairs, and the execution of the commercial paper for the purchase price, made the sale an absolute one, and, for the purposes of this suit, transferred the title. The note and the agreement together are in no sense a chattel mortgage, and probably were not executed in accordance with the provisions of the law with reference to such instruments; and, whatever may have been the rights of the vendor or vendee in case of the attempted enforcement of the contract, the transaction itself transferred the title. The supreme court has decided (to use its own language): "The optional payment of the purchase price is as essential to constitute a transaction a con

ditional sale, as the conditional passing of the title; and a transaction that in express terms imposes an unconditional liability upon the vendee to pay the purchase price for the property delivered, however characterized by the parties, is essentially, and in legal effect, an absolute, and not a conditional, sale." A. H. Andrews & Co. v. Colorado Sav. Bank, 20 Colo. 313, 36 Pac. 902; Tufts v. Beach, 8 Colo. App. 33, 44 Pac. 771. It is quite apparent from the statement of facts that the principle is applicable; the transaction was an absolute sale; the title did pass to the vendees, and, having given an absolute promise to pay the price, they are liable on the note, regardless of the destruction of the property.

These two propositions are the only ones called to our attention, and, being resolved against the appellant, the judgment must necessarily be affirmed, which is accordingly done. Affirmed.

MAHER v. VAN HORN.

(Court of Appeals of Colorado. April 9, 1900.) WAGER-RESCISSION-AGREEMENT-LIABILITY OF STAKEHOLDER.

Notice by one of the parties to a wager on the result of the election, to the stakeholder, before he had paid over the money, not to pay it to the other party, because the result of the election was in doubt, and stating that he would hold him personally responsible for the amount of the wager, does not constitute such a repudiation and rescission of the wager agreement, and the authority of the stakeholder, before performance, as will support an action to charge the stakeholder with the amount deposited with him by plaintiff, and by the former paid over to the other party to the wager. Appeal from district court, Arapahoe county.

Action by William L. Van Horn against William Maher to recovery money deposited on a wager. From a judgment in favor of plaintiff, defendant appeals. Reversed.

T. J. O'Donnell and Milton Smith, for appellant. Alex. McArthur, for appellee.

was further averred that on April 7th, the day succeeding the election, the plaintiff gave notice, in writing, to the defendant, not to pay said sum of money, or any part thereof, to Pennington and McCauley, and warning defendant that the plaintiff would hold him responsible for the moneys so deposited in his hands; that on May 24th following, plaintiff made demand upon the defendant to pay him the "said sum of money so deposited with him as aforesaid," and that defendant refused to pay the same. Defendant answered, admitting the deposit with him of the money upon the condition set forth in the complaint. He also admitted the service upon him by plaintiff of a notice, in writing, on April 7th, and set forth the notice in full, as follows: "Denver, Colorado, April 7th, 1897. To William Maher, Denver, Colorado: You are hereby notified not to pay over any sum or sums of money in your hands and custody as stakeholder of certain wagers made by William McCauley with William L. Van Horn,-two hundred dollars deposited by each on the result of the election for alderman in the Third ward of the city of Denver, and the further sum of fifty dollars wagered by Thomas Johnson against a like amount of fifty dollars wagered by William L. Van Horn on the result of the election for alderman in the said Third ward, and the further sum of twenty dollars wagered by J. L. Pennington against a like sum of twenty dollars wagered by William L. Van Horn on the result of the election for alderman in the Third ward of the city of Denver, which said election was held therein on the sixth day of April, 1897, and which sums of money, aggregating five hundred and forty dollars, were placed in your hands, as stakeholder, to be paid to the winner of said wagers, to be determined by the election of alderman in said ward, and as to which election the result remains in doubt. Therefore this is to notify and warn you not to pay said sum, or any part thereof, to either the said William McCauley, Thomas Johnson, or J. L. Pennington, or any person for them, and that I will hold you individually responsible for said money so deposited in your hands as aforesaid. W. L. Van Horn." The answer also alleged that after the service of said notice, to wit, on the 12th day of April, a certificate of election as alderman was issued to Doyle by the properly constituted city authorities, and upon the presentation to him of said certificate he paid the money in his hands to McCauley and Pennington. The answer further sets forth the notice served upon defendant on May 24th, as follows: "May 24, 1897. Mr. Wm. Maher, 1643 Curtis St., Denver, Colo.-Sir: I hereby demand that you forthwith pay over and deliver to me the sum of four hundred and forty dollars, being an amount deposited in your hands on or about the 5th day of April, 1897, as a wager upon the result of the election of alderman in the Third ward of the

city of Denver, then ensuing; $200 of which said sum was wagered by William McCauley against a like sum wagered by me; $20 wagered by J. L. Pennington against a like sum wagered by me; all of which sum was placed in your hands as stakeholder, to be held by you, awaiting the result of said election, and upon the determination of such election to be paid over by you to the winner of such wager. Said election having taken place, and the result of said election having been legally and finally determined by the tribunal authorized by law to determine such elections, and the result being the election, finding, and declaration thereof by the board of aldermen of the city of Denver that the candidate upon whose election I wagered my money was duly elected, I now, therefore, demand payment to me of said stakes. Yours, respectfully, W. L. Van Horn." These two notices, the answer averred, were the only notices ever served upon or given to defendant by plaintiff. Defendant further alleged that at the time of the commencement of the suit he did not have in his hands, or under his control, any of the money deposited with him on the bet. It will be observed that the notice served on April 7th referred, also, to another bet of plaintiff, in the sum of $50, but this is not involved in this suit. Upon the filing of the answer, plaintiff made a motion for judgment upon the pleadings, which was allowed. From the judgment so rendered, defendant appeals.

It is conceded by both parties that wager contracts on the result of elections are contrary to public policy and void, and will not be enforced by the courts, even though there be no statute on the subject. It was early so held in Colorado with reference to all wagering contracts. Eldred v. Malloy, 2 Colo. 320. This question, therefore, is eliminated from consideration. It is further conceded that a party to a bet may recover from the stakeholder the amount deposited by him, if, before it is paid over to the winner, the stakeholder has been notified by such party that he has repudiated or rescinded the contract, and that his authority has been revoked. In fact, this seems to have been expressly so held in this jurisdiction. Corson v. Neatheny, 9 Colo. 214, 11 Pac. 82. The case therefore narrows down to the consideration of only one question,-do the facts admitted by the pleadings bring this case within the last proposition, so as to permit the application of the conceded rule? Between the parties to a wagering contract, the law, from reasons of sound public policy, will not interfere in aid of either to secure an enforcement of the contract, or a recovery from the stakeholder, after the execution of the contract, of the deposit made with him by either party to the wager. Fisher v. Hildreth, 117 Mass. 558. They are in pari delicto, and cannot ask the court to recognize an agreement which the law declares to be immoral and unlawful. The right of a party to maintain an action of

this character, and to recover from a stakeholder, before payment, the amount deposited by him, is based upon the fact that the stakeholder is not a party to the illegal contract, and is not in pari delicto; that he is the mere bailee or agent of the parties to hold money, the title to which has not been changed. The plaintiff in such a case cannot seek nor have a recovery upon a promise which within the policy of the law is a void promise, but upon the ground that he elected to repudiate and rescind an unlawful contract, revoked the authority of the bailee, and recalled his money before it was paid over under the terms of the illegal agreement. As to what constitutes a sufficient notice to the stakeholder to stop payment under the provisions of the unlawful agreement, and render him liable for the return of the money deposited by the party giving the notice, there is some little seeming conflict of authority; arising generally, however, from the differing attendant circumstances, and the varying character of the language used in the notices, and the manner of giving notice. The general consensus and great weight of modern authority, however, establish the doctrine which accords with reason and principle, that the language must be such as to clearly express the intent of the party giving the notice then and there to repudiate and rescind the entire wagering agreement, to revoke the stakeholder's authority to pay the money deposited by the party to any person other than himself, and to demand a return of his deposit. Of course, no particular form of words is required; but it accords with reason, as well as law, that they should be such "as would be altogether intelligible, and not of such dubious import as to leave it uncertain what the depositor intended, or whether the authority given when the money was deposited was revoked." Ivey v. Phifer, 11 Ala. 539. In our opinion, the notice given by the plaintiff on April 7th did not come within the rule, and was not sufficient to support this action. There is not a word in it which indicates any intent of plaintiff, either then or at any subsequent time, to repudiate the wager, or to revoke the authority of the stakeholder to pay the entire deposit to the winner upon the happening of the contingency specified in the agreement. Because the result of the election was then in doubt, therefore plaintiff notified the stakeholder not to pay the entire deposits, or any part thereof, to the parties with whom he made the wager. He did not demand, by this notice, nor indicate any intention to demand at any future time, a return of the money deposited by himself. If McCauley or Pennington had afterwards repudiated the contract, and demanded a return of his deposit only, the stakeholder could not have acceded to the demand without going contrary to the notice of plaintiff, because in this he expressly forbade the defendant to pay to these parties the entire deposit, or any part thereof. The stakeholder was also specifically warned that

he would be held individually responsible, not only for the amount deposited by plaintiff, but for the entire sum deposited by all of the parties to the wager. The words, "and as to which election the result remains in doubt," used after reciting the amount and terms of the wager, must be construed in connection with the other parts of the notice, and they are the only words which tend to throw light upon the intent of the plaintiff. The notice was, in effect, simply saying to the stakeholder: "The result of this election is yet in doubt, and while this is the case I notify you not to pay the money to the parties with whom I made the wager until this matter is finally determined; and, if you do, I will hold you individually responsible for it." Any other construction of it would, we think, do violence to the English language. The so-called notice was in reality a recognition and reaffirmance of the original agreement. If there were any possible question about this, all doubts would be absolutely removed by an inspection of the subsequent notice given by plaintiff to defendant on May 24th. In this he claims to have been the winner of the wager, and demands, accordingly, the payment to him of the entire sum deposited with the stakeholder by himself and the other parties to the bet. The notice was wholly insufficient to charge the stakeholder with any liability.

These views are, in our opinion, in entire accord with the fundamental principles which underlie such actions, and which must justify recovery, if at all, and are supported by the best authority. We cite a few cases in point: Okerson v. Crittenden, 62 Iowa, 299, 17 N. W. 528; Trenery v. Goudie, 106 Iowa, 693, 77 N. W. 467; Colson v. Meyers, 80 Ga. 499, 5 S. E. 504; Patterson v. Clark, 126 Mass. 531; Wilkinson v. Tousley, 16 Minn. 305 (Gil. 269); Burroughs v. Hunt, 13 Ind. 179. The case first cited is "on all fours" with this, so far as concerns one of the main questions which have been presented and discussed. In that, as in this case, the plaintiff had demanded of the stakeholder the whole amount wagered, on the ground that he was the winner. The court said: "This cannot be regarded as a revocation or repudiation of the wager, nor can it be regarded as a notice to the stakeholder not to pay the amount placed in his hands by the plaintiff. No demand was made on the stakeholder for the amount the plaintiff placed in his hands. This he was required to do before the stakeholder could be made liable." In Patterson v. Clark, supra, the plaintiff, as in this, never demanded the return to him of his half of the deposit, but, as did the plaintiff here, by his April notice, forbade the stakeholder to pay the money to other parties as winners. The court say: "Upon the agreed statement of facts, it is certain that he never revoked his authority to pay the whole one hundred dollars to the winner." The plaintiff in that case, as did the plaintiff here by his notice of

May 24th, contended that he himself was the winner, and demanded the payment of the entire deposit. In Colson v. Meyers the plaintiff gave to the stakeholder written notice not to turn over the moneys held by him, as he should "probably contest the election." The court said of this: "It is not a demand by Meyers on Colson for his part of the money, but is simply a notice to Colson to hold up the whole amount, as he (Meyers) would probably contest the election." Trenery v. Goudie was a case wherein a recovery was sought from the stakeholder of the amount deposited with him by a party to the wager. The court said: "His [plaintiff's] right in the courts begins only when he repudiates the original transaction. If, before the money was paid to Boyle, the plaintiff repudiated the wager, and notified the defendant of the fact, and warned him not to pay over the amount of plaintiff's money in his hands, then he can recover; otherwise, not. We do not find the plaintiff ever revoked the wager. On the contrary, he expressly recognized it, and the only warning given defendant was that he should not treat Boyle as the winner, without further notice." This was a case which appears from the opinion to have been quite similar to the one at bar. It was a bet upon an election. The count of the judges of election showed that a certain candidate was elected, but, in a contest thereafter, the other candidate was awarded the certificate of election. The plaintiff notified the stakeholder not to pay over the money upon the return of the election judges, but, in defiance of this, the stakeholder did so.

The appellee has cited us to two cases in support of his contention that the notice was sufficient: Hale v. Sherwood, 40 Conn. 332; Willis v. Hoover, 9 Or. 418. In the first case the opinion was rendered by a divided court, and we are much more strongly impressed with the reasoning and argument of the dissenting opinion than that rendered by the majority of the court. We do not believe the decisions are in accord with the general weight of authority and with the best-considered cases. However this may be, they are not in point. They are to the effect that, although the plaintiff demanded a greater sum than he had deposited, this was not a reason why he should not be entitled to the sum which he actually did deposit. The plaintiff in this case, by his notice of April, did not demand the payment to himself of anything. By that of May 24th he demanded the entire amount, as winner of the whole; and this was not a sufficient demand or notice to sustain this action, as we have seen from the cases cited. But, even if this had been a good and sufficient notice, it came too late, because it was after payment had been made by the stakeholder. The contract had been executed. This doctrine is supported by all of the authorities. Before consummation, the law allows a party to an unlawful

contract to repudiate it, and revoke an authority which he may have given under it, but will not consider his claims afterwards. Not availing himself of this privilege, he cannot complain, and must accept the consequences. Goldberg v. Feiga, 170 Mass. 146, 48 N. E. 1073.

The allegations of the answer were not denied, there being no replication, and hence they stood as admitted facts. They constituted a complete defense to the cause of action set forth in the complaint, and not only was the plaintiff not entitled to judgment upon them, but the defendan: would have been entitled to a judgment in his favor. It follows that the judgment herein must be reversed, and it will be so ordered. Reversed.

BLACKMORE v. NEALE.

(Court of Appeals of Colorado. March 9, 1900.

LIMITATION OF ACTIONS WHEN STATUTE APPLIES-SUBSEQUENT PROMISE

-INSTRUCTIONS.

1. Where it is sought to avoid the bar of limitations because of a general admission of indebtedness, and such admission is proved, it must be taken to relate to the indebtedness in suit, in the absence of evidence that it referred to some other demand.

2. In an action on a debt barred by limitations, where there was evidence of a general admission of indebtedness made when the debt in suit was the only one owing by defendant to plaintiff, defendant was not entitled to an instruction that a general admission of indebtedness was not a promise to pay any particular debt.

3. Where a party asks for an instruction which is erroneous, he cannot complain because the court refused it, or because the court did not of its own motion modify it.

Appeal from Conejos county court.

Action by William R. Neale against George L. Blackmore. From a judgment for plaintiff, defendant appeals. Affirmed.

Eugene Engley and T. B. McDonald, for appellant. F. B. Webster, Z. T. Brown, and H. L. Ritter, for appellee.

BISSELL, P. J. Neale sued Blackmore for money due on an account amounting to about $220.15. All of the account, except $6, accrued in the years 1881 and 1882, and was barred by the general limitation statute of six years, unless the account was revived and taken out of its operation by reason of the two items of $6, or some subsequent promise. The latter items were for services rendered by Neale as sexton of the cemetery, who, under instructions from Blackmore, dug a grave for his child, and did other work, perhaps, connected therewith. The balance of the account was for repairing and shoeing done by Neale for Blackmore while he was running a livery stable in the town where they both lived. The case was tried by a jury, which rendered a verdict for the sum named, and thereon Neale had judgment, and Blackmore prosecutes this appeal