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77 was paid by the bank during the month ed the cattle, that he had paid for them, of February, and that was paid February that he had drawn a draft on the commis18; that there was no check of defendant sion company in favor of the person from for an amount over $4,000 and not over $4,- whom he had bought the cattle, and when he 250 paid during that month, and this dis- obtained the money on the draft, by payment proves defendant's statement. It quite made to the First National Bank in Denver clearly appears that the $4,817.77 check paid by the commission company, if the represenFebruary 18 was the one given by defendant tations which he made for the purpose of obto the McKee Live Stock Commission Com-taining payment of the draft were false, then pany February 9. Defendant claims corrob- the offense was committed when the money oration by the testimony of Perry A. Nel- was obtained, and he obtained it when it son, who had been stock inspector at West- was paid to the bank. cliffe for 6 or 8 years. But we think Nelson's testimony does not corroborate that of defendant.

In his direct examination Nelson was asked this question:

"However, the gravamen of the offense is in making the false pretense and obtaining thereby a person's property or signature, and does not depend upon ultimate loss to the victim or whether in fact he sustains any pecuniary loss. * Neither a promise to repay nor an intention to do so deprives the false and fraudulent act in obtaining it of its criminality. The Qoffense is complete when the money or property has been obtained by such means, and cannot be purged by subsequent restoration or repayment. 11 R. C. L. 843, 844; 25 C. J. 615; State v. Holmes, 98 Kan. 174, 157 Pac. 412,

"Do you know about a bunch of about 39 steers that Mr. Pepper bought of Jim Belknap in February, 1920? A. Yes, sir.. *

Do you know where those steers were pur-
chased or where those steers were put in
February, after they were purchased by Mr.
Pepper? A. Put on his ranch."

* *

In his cross-examination Mr. Nelson tes- L. R. A. 1916F, 11. tified:

"Q. Do you remember the exact date when Mr. Pepper bought the cattle from Mr. Belknap? A. I do not. Q. Do you know whether it was in the month of March, perhaps, that he bought the cattle? A. I know it was in the spring of the year. Q. You know it was in the spring of the year? A. After the first of the year some time; it was along toward the spring. Q. You mean after the 1st, of January, along towards the spring some time? A. Yes, sir, some time after that. Q. But you do not know the date? A. I cannot call the date.

Q. You cannot tell for sure whether it was in the month of February, can you? A. No, sir, I cannot."

That is the entire testimony of Nelson on that point, and from which it will be seen that he does not even pretend to say that the cattle were purchased from Belknap in the month of February.

The evidence of the defendant was at times evasive and unsatisfactory. A careful examination of the entire evidence in the case leads us to the conclusion that there was ample to sustain the verdict of the jury. [2] The defendant contends that the commission company was not defrauded by the transaction, and therefore the defendant could not be found guilty. This contention is based upon the fact that the proceeds of the $4,250 draft was used in the payment of the $6,000 check which he had previously given the commission company.

We cannot agree to this contention. We cannot assent to the proposition that one may pay his debt by obtaining money by means of a false pretense, even though by such pretense he obtains it from the one to whom he is indebted and pays that debt with the money so obtained.

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Defendant cites the case of Roberts v. People, 71 Colo. 198, 205 Pac. 272, as authority for the proposition that to justify a conviction on the charge of obtaining money by means of false pretenses there must be positive evidence that loss was sustained. In that case the court found that no loss had been sustained; that Miller had suffered no loss by reason of what the defendant did. In the instant case the jury found that loss was sustained and the McKee Commission Company was defrauded, and we think the evidence justifies the finding.

[3] The evidence sufficiently shows the criminal intent, and also sufficiently shows that the McKee Commission Company relied upon the representation, as to the ownership of the cattle, at the time the draft was drawn, and at the time the representations were made, and not upon defendant's promise to ship them the following Monday.

The court having instructed the jury that reliance upon the promise to ship the cattle on Monday following February 19 would not justify a conviction, the presumption must be that the jury found that McKee relied upon defendant's statement concerning his ownership of the cattle. When a false statement of fact is coupled with a false promise, "*

the statement of fact and the promise may be considered as together constituting the false pretense, and a conviction may follow, or, if the statement of fact and the promise can be separated and prosecutor relied in part on the former, the promise may be disregarded, and accused be convicted on the statement of fact." 25 C. J. 594, § 15.

[4] The defendant contends that the money was obtained by him in Custer county and not in the city and county of Denver, When defendant represented that he own- and therefore defendant could not be con

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victed in the latter county. We do not concur in this view. When the money was paid to the First National Bank in Denver, the defendant then and there received it. The bank in Denver received it as the agent of the defendant. The McKee Commission Company lost its property in the money, and its dominion over it in Denver county, upon the representations made by the defendant in Custer county, and the court properly instructed the jury in that respect.

The defendant, in support of his position that the venue was in Custer county, cites, among other authorities, 11 R. C. L. 854, § 36, but we think that authority does not sustain him. He quotes it in his brief as

follows:

"Within the rule that a crime must be prosecuted in the jurisdiction where it is committed, a prosecution for criminal false pretenses must be had in the county where the offense was consummated by the obtaining of the property, even though the inducing pretenses were made elsewhere and the consummation by delivery of the property was effected through the instrumentality of an innocent agent."

Other authorities might be cited, but we deem it unnecessary.

Finding no error in the record, the judgment is affirmed.

TELLER, C. J., and CAMPBELL, J., con

cur.

Robert H. Kane, of Denver, for defendant in error.

SHEAFOR, J. Some time prior to September 5, 1908, Dillie S. Aldrich died in Kansas, leaving a will, which was there probated. The will dispensed with bond. On the date mentioned Ozetta Marshall was appointed executrix of the estate of Dillie S. Aldrich in Colorado. The executrix in Colorado proceeded to administer the estate, and shortly after her appointment she presented a claim of her own against the estate, and a special administrator was appointed. The claim of the executrix was allowed October 20, 1908, in the sum of $2,829.68. The following year, on September 4, 1909, she filed a report showing payment to herself of this claim which had been allowed. Shortly thereafter certain heirs at law and legatees under the will appeared by Robert H. Kane, and filed objections to the approval of the report and to the payment of the judgment or claim allowed in favor of the executrix. Up to this time no bond had been required of the executrix in Colorado, but on October 2, 1909, she entered into a bond as executrix in the sum of $3,500 with the United Surety Company as surety. Thereafter, on January 13, 1911, she entered into another bond as executrix with the Empire State Surety Company, as surety, apparently without any order therefor made at that time, but on the 6th day of April, 1911, an order was entered nunc pro tunc as of January 28, 1911, the day on which the second bond was filed, ordering the executrix to file an additional bond, and

NATIONAL SURETY CO. v. PEOPLE ex rel. the bond was then approved. In the mean

KANE. (No. 10638.)

(Supreme Court of Colorado. April 7, 1924. Rehearing Denied May 5, 1924.) Insurance 679-Successor to surety company held not liable on bond under which claim had been made.

Under contract whereby surety company took over business of another surety company, and took its place as to unexpired bonds on which there was no known claim, where claim against executrix for whom other company was surety existed, and was known to it before execution of contract, claimants thereon were bound by contract, and could not maintain ac

tion against successor, though that claim had

not been reduced to judgment.

Department 3.

Error to District Court, City and County of Denver; A. F. Hollenbeck, Judge.

time it appears that Ozetta Marshall, the executrix, had paid herself the amount of her judgment, and had used the money prior to the year 1911, and at the time of the execution and approval of the second bond she had no money on hand, either individually or as executrix. On December 8, 1909, Florence E. Taylor and others, as plaintiffs, brought suit against Ozetta Marshall, the object and purpose of which were to have the claim and judgment theretofore allowed in favor of Marshall set aside, alleging that her said claim and judgment were fictitious, false, tiffs prevailed, and the judgment in favor of and fraudulent. In this proceeding the plainMarshall was ultimately, and during the year 1914, set aside. Ozetta Marshall continued

to administer the Aldrich estate until some time in the year 1918, when she removed to the state of Kansas, where she has since resided. On December 31, 1921, the county court made an order removing Ozetta Marshall as the executrix of the estate, and on the 6th day of January, 1922, the court appointed Robert H. Kane, administrator de bonis non to complete the administration of Dana, Blount & Silverstein, of Denver, for the estate. On September 18, 1912, a conplaintiff in error. tract was entered into between the Empire

Action by the People of the state of Colorado, on the relation of Robert H. Kane, administrator de bonis non of Dillie S. Aldrich, deceased, against the National Surety Company. Judgment for relator, and defendant brings error. Reversed, with directions.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 225 P.-54

It appears from the evidence that Mr.

State Surety Company and the National agreement, there could be no liability upon Surety Company, defendant, by the terms of the part of the National Surety Company, which defendant undertook and assumed cer- because such default, claim, or loss were extain designated risks of the Empire State pressly excepted and excluded from the Surety Company; the plaintiffs claiming agreement. that among those assumed is the one involved in this controversy. The defendants | Crank, an attorney, and brother-in-law of the in error, as plaintiffs in the court below, executrix, discussed with Mr. Gemmill, then and here so designated, brought this suit and the local agent of the Empire State Surety obtained judgment in the trial court for the Company, in Denver, and who, it appears, sum of $4,787.19, the contract between the was the attorney in fact for the company, Empire State Surety Company, and the Na- and signed the bond of the executrix for the tional Surety Company being the basis of the company, the particular claim made by the judgment. The plaintiff in error, defendant | legatees, and informed Gemmill of the claim in the court below, and here so designated, made against the executrix, and that the brings the case here for review.

This contract provides inter alia that the National Surety Company agreed to reinsure certain unexpired surety and fidelity bonds "for any default of the principals named in said bonds * * * occurring after 4 o'clock p. m. of the 22d day of August, 1912."

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This contract contains a further provision that the National Surety Company should take the place of the Empire Surety Company "as to all said unexpired bonds and all said unexpired policies in all respects with regard to all obligations therein and for loss thereunder, on which no written notice of claim was received by any of the officers of the Empire State Surety Company located at the home office in the city of New York, Denver, Colo."

or

*

* *

claim would be defeated; that later Mr. Crank gave a written statement of the claims made by the legatees as against the executrix in the case which they had brought to set aside the judgment, and as to the reasons why it was not a valid claim, so that Mr. Gemmill might submit such statement to his head officers. This information was given to Gemmill in September, 1911, one year be fore the contract was entered into.

If the defendant became liable to the plaintiffs, it was because of the contract which defendant entered into with the Empire State Surety Company, and it was not, by the terms of the agreement, to become liable upon any bond, even though specified in the schedule, if as to any such bond there was a known default, claim, or loss, prior to August 22, 1912. This contract has once before been considered by this court. People v. National Surety Co., 68 Colo. 231, 188 Pac. 653.

The uncontradicted evidence shows that the managing officer of the Empire State Surety Company, at Denver, knew of this claim asserted against the executrix at the time of, and long before, the execution of the contract, and evidently the defendant did not. There was an entire lack of evi dence that defendant had notice or knowledge of the existence of the claim at the time the contract was entered into, and it cannot be presumed that the defendant know. *ingly assumed a risk then in litigation.

Also the further provision that “The National Surety Company shall not be liable for any liability of the Empire State Surety Company except as expressly set forth herein." Also the further provision that "upon none of the bonds and policies which have been or shall be tendered to the National Surety Company for reinsurance in accordance with the terms of this agreement has there been presented any written notice of claim to any of the officers of the Empire State Surety Company, located at its home office in the city of New York, or any of its general agents, or branch office managers, located at * Denver, Colo., or written notice of claim to any agent of the company prior to August 22, 1912, at 4 o'clock p. m. that there was no known default, claim or loss upon any of said bonds and policies by any officer of the Empire State Surety Company located as aforesaid."

*

*

The principal contention of defendant is that the bond in the Aldrich estate, signed by the executrix and the Empire State Surety Company, was not a risk included in the contract between the National Surety Company and the Empire State Surety Company. The defendant insists that, if there were any de fault, claim, or loss known to the representatives, officers, or general agents or branch office managers of the Empire State Surety Company at the time of entering into the

The plaintiffs, however, claim that there was no default, claim, or loss, and could not be, until the court declared in favor of the legatees and set aside the judgment obtained by Marshall, and not until she was ordered to account for the money, an order for distribution made and disobeyed, and that all these things occurred long after the execu tion of the contract in question, in fact in May, 1918.

We cannot agree with plaintiff's contention. The claim was made against the execu trix, and existed regardless of the outcome of the litigation. It cannot be questioned, of course, that the defendant had a right to limit its obligations in the contract which it signed. It had the right to provide in the contract that it would not become liable upon

(225 P.)

nied.

Department 3.

Error to District Court, City and County of Denver; Francis E. Bouck, Judge.

Suit for injunction by A. H. Flood and others against the Jacob Dold Packing Company and others. Trial court dismissed the suit, and plaintiffs brought error, the Supreme Court denying application for writ of supersedeas. Writ of error dismissed.

George A. Carlson and W. R. Ramsey, both of Denver, for plaintiffs in error. D. L. Webb, of Denver, for defendants in

any bond, even though specified in the sched-, merely moot question where pending writ sale ule, upon which there was a known default, is had, writ of supersedeas having been declaim, or loss prior to August 22, 1912. The plaintiffs cannot complain if they are required to bring themselves within the terms and provisions of a contract but for the existence of which they could have no cause of action whatsoever against the defendant. The evidence clearly showing that the claim against the executrix existed, and was known to the Empire State Surety Company at and long before the execution of the contract, and this knowledge not having been communicated to the defendant, we hold that the plaintiffs are bound by the provisions in the contract, and are not entitled to maintain this action. The following cases sustain us: Fireman's Fund Ins. Co. v. Aachen & Munich Fire Ins. Co., 2 Cal. App. 690, 84 Pac. 253; Southern Surety Co. v. Equitable Surety Co., 84 Okl. 23, 202 Pac. 295, 299; Mutual Reserve Fund Life Ass'n v. Green (Tex. Civ. App.) 109 S. W. 1131, 1133; Hoffman v. North British & Merc. Ins. Co. of Edinburgh & London, 35 Misc. Rep. 40, 70 N. Y. Supp. (104 N. Y. St. Rep.) 106, 108; Sun Mutual Ins. Co. v. Ocean Insurance Co., 107 U. S. 485, 1 Sup. Ct. 582, 27 L. Ed. 337; Spande V. Western Life Indemnity Co., 61. Or. 220, 117 Pac. 973, 122 Pac. 38.

The

Plaintiffs seem to claim that defendant's liability in this case was determined in the People v. National Surety Co., supra. question here discussed was not there considered. In that case the sufficiency of the amended complaint was attacked by general demurrer and the court stated that there seemed to be but one contention of the defendant that required consideration, and that was that the contract between the two com

panies was a strict reinsurance agreement,
one for indemnity only with the Empire
Company, and the original assured had no
The
right of action against the reinsurer.
court held that the complaint stated a cause
of action against the defendant. Obviously
the matters here involved could not have
been, and were not, passed upon by this court

in that case.

In view of the conclusions we have reached, it is unnecessary to pass upon the other questions presented.

The judgment of the lower court is reversed, with directions to dismiss the action.

error..

CAMPBELL, J. The object of the action is to enjoin a sheriff from selling real estate under an execution. The trial court denied the relief and dismissed the action. The application of plaintiffs in error for a writ of supersedeas was denied by this court. The sale was held and the property was sold. Even if either plaintiff was entitled to any relief it could not now be given on this review. The cause is moot. The writ of er

ror is therefore dismissed.
Writ dismissed.

TELLER, C. J., and SHEAFOR, J., con

cur.

UNION NAT. BANK OF GREELEY v.
BOARD OF COM'RS OF WELD
COUNTY et al. (No. 10750.)
(Supreme Court of Colorado. April 7, 1924.
Rehearing Denied May 5, 1924.)

Taxation 543 (2)—Bank neglecting to apply
to governmental agencies for relief from tax
levy denied legal relief.

Where bank, as respects assessments of its property, made no application for relief to state tax commission and board of equalization, but remained inactive until long after tax was laid, it was not entitled, under C. L. § 7447, to recover excessive taxes paid to the county treasurer under protest.

Department 3.

Error to District Court, Weld County;

TELLER, C. J., and CAMPBELL, J. George H. Bradfield, Judge.

concur.

Action by the Union National Bank of Greeley against the Board of County Commissioners of the County of Weld and others.

FLOOD et al. v. JACOB DOLD PACKING Judgment for defendants, and plaintiff brings CO. (No 10771.)

(Supreme Court of Colorado. May 5, 1924.) Appeal and error 781(4)—Writ of error dismissed as involving merely moot question. Writ of error to refusal of injunction against sheriff's sale dismissed as involving

error.

Affirmed.

Harry N. Haynes and Ralph L. Dougherty, both of Greeley, for plaintiff in error.

William R. Kelly, of Greeley, Russell W. Fleming, Atty. Gen., and Charles Roach, Deputy Atty. Gen., for defendants in error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CAMPBELL, J. This is an action by the Union National Bank of Greeley against the board of county commissioners of Weld county to recover excessive taxes for the years 1913 and 1914, with interest and penalties, which it paid to the county treasurer under protest. The action is based on section 7447, C. L. 1921. In Kendrick v. A. Y. & M. Co., 63 Colo. 214, 164 Pac. 1161, it was held that a writ of injunction would not lie to restrain the collection of such a tax, but that the statute cited provides a plain, complete, and adequate remedy at law for a taxpayer to recover from the county a tax which shall thereafter be found to be erroneous or illegal. This decision, however, was not that an action at law will lie in every case to recover the amount of an illegal or erroneous tax paid by a taxpayer. The right to sue is not absolute, but conditional, and in the Kendrick Case it was held that the right was lost by failure of the taxpayer to comply with the prescribed condition.

After a careful consideration of this record and a reading of Colorado Tax Commission v. Pitcher, 56 Colo. 343, 138 Pac. 509, and First National Bank v. Patterson, 65 Colo. 166, 176 Pac. 498, the judgment of the district court, in sustaining the general demurrer to the complaint and dismissing the action, we think, was warranted. The Patterson Case involved taxes laid for the year 1913. The tax there complained of was laid in precisely the same manner as the 1913 tax involved in this action. Complaint is also made here of the 1914 tax, but it was laid as was the 1913 tax, and the same principle of law is applicable to the taxes of both years. The same facts which barred relief in the Patterson action bar relief in the instant case. The court in that case held, as stated, that section 7447, which is the one upon which this action is based, makes it necessary, as an essential condition precedent, for an aggrieved taxpayer to pay the whole tax assessed against him and then bring an action at law for a refund, and a suit in equity to restrain collection does not now lie. In the Patterson Case the plaintiff bank relied upon an equitable and legal remedy, but the decision there was that under the facts of that case the taxpayer was entitled to neither. It was the horizontal raise by the state tax commission and its approval by the state board of equalization later that the taxpayer there, as here, complained of. The court said that the law made the taxpayer cognizant of the fact that such assessment by the assessor-with which the taxpayer there, as here, is satisfied-was subject to change by superior governmental agencies which were required to meet at certain places and on certain dates and complete their labors within a designated time. Since, with full knowledge of the respective powers of these several

boards to make corrections in assessments and adjustments in equalization, the taxpayer there, as is true in the instant case, remained inactive until long after the tax was laid, when it applied for an abatement or rebate, he is not entitled to relief at the hands of the courts because he neglected to avail himself of his unquestioned right in advance of a final levy or assessment, to apply for relief at the hands of these superior governmental agencies. The court made no distinction between legal and equitable relief; it said that equitable relief in no event is available because the statute has provided an adequate remedy at law, and the right to maintain the latter was waived by negligence. The reasoning of the opinion there, that the neglect of the taxpayer to resort to his statutory remedy for obtaining the desired relief from the superior governmental bodies, is just as conclusive against the taxpayer's right to a suit in law as it is to invoke equitable relief. In the Patterson Case the taxpayer appeared by the same learned counsel who represents the complaining taxpayer in this case. Precisely the same objections to the validity of the tax laid in the present case were interposed in the Patterson Case. see no escape from the conclusion that the taxpayer here may not obtain from the courts the demanded relief, unless we should overrule the Patterson decision. Necessarily we are thereby precluded from entering upon an inquiry as to the validity of the taxes complained of. The judgment is affirmed. Affirmed.

We

TELLER, C. J., and SHEAFOR, J., concur.

CHAVEZ v. HAYNIE, Sheriff. (No. 10954.) (Supreme Court of Colorado. May 5, 1924.) 1. Fraudulent conveyances 146(3)-Father's gift to minor daughter, unaccompanied by delivery or change of possession, held void against subsequent creditor.

Father's gift of automobile to minor daughter, living with family, unaccompanied by immediate delivery or subsequent change of possession, held void as against a subsequent creditor, under statute of frauds (C. L. § 51 13), whether or not transaction was bona fide. 2. Evidence 80(1)-Presumed statutes of other states differ from statute of state, if judicial decisions differ.

The statutes of other states are presumed if their judicial decisions are contrary to our to be different from the statutes of this state,

own.

En Banc.

Error to District Court, Conejos County: J. C. Wiley, Judge.

Replevin by Luisita Chavez, a minor, by Luis F. Romero, her next friend against J. Parley Haynie, sheriff of Conejos County.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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