The answer contains specific denials of all the material allegations in the complaint. But for "special and further answer and defense" the defendant alleges that the pretended lease mentioned in the complaint, executed in its name by one J. J. Elliott, was wholly unauthorized; that said Elliott was never an officer of the company, and never its agent, except temporarily to take care of certain of its property; that he never had any authority whatever to make said pretended lease; that the same was executed without the knowledge or consent of the company, and that as soon as its duly authorized officers were advised of the said pretended lease the same was repudiated by it; and that neither the company nor any authorized officer or agent has ever directly or indirectly approved of, or ratified the same. To this answer no replication was filed.

The following are all the material facts not sufficiently stated in the opinion: The defendant corporation was in the hands of eastern parties. Boston was its principal place of business. There its books and records were kept; and there its directors held their meetings. It was represented in Colorado by a single officer or agent. The "managing director" first appointed, resigned and returned east; afterwards one Calhoon was elected to the office of superintendent, and came to Colorado. During the interval between these two administrations, of more than 60 days, Elliott and one Caim were each in turn the sole agent in charge of the property and business, though neither was ever regularly elected to the office of managing director or superintendent. Soon after Elliott was left in charge he executed the lease to plaintiff. At that time he was in correspondence with the principal officers of the company; letters were exchanged almost daily; he immediately notified the president and secretary of the lease, and received letters from them thereafter; no mention of the lease was made by the company or its oflicers; and no objection was interposed until Calhoon took charge of the business, some 51 days later. Calhoon told plaintiff that he did not think his lease was legal, and requested him to stop work; yet Calhoon himself had no specific instructions from the company controlling his conduct in the premises. He testifies that he requested plaintiff to stop work until he could hear from the company; also that he immediately wrote the company for instructions on the subject. No communication concerning the lease was received from headquarters for something like 72 days after Calhoon's letter was mailed. In the mean time Calhoon had given plaintiff written permission to re-enter the mine, and continue his work under the lease. While Elliott was in charge, one Curtis, a director of the company, came to Colorado, visited the property, saw plaintiff at work, and knew of the lease, but made no objection whatever. Plaintiff did a great deal of dead work, and lost money under the lease; but when ousted he had considerable fine-looking ore in the top and breast of his drift or tunnel; the small profits realized from the sale of ore taken out by him were retained by Calhoon. Calhoon testifies that when he permitted plaintiff to resume work he informed him that no word had been received from the company on the subject; that he acted upon his own responsibility, and that when the company did respond he (plaintiff) might be required to abandon the property. Plaintiff testifies that no such talk was had; that, on the contrary, he supposed, and was led to suppose, that Calhoon had received a response from the company, and that his written permission to continue work under the lease was in accordance with such response. Calhoon's letter corroborates plaintiff's statement. It reads:

"IDAHO SPRINGS, twenty-first May, 1884. "Peter Donat-SIR: This is to inform you that the Hoosac Mining & Milling Company, represented by me, have decided that you are at liberty to continue work under the lease granted you by J. J. Elliott. JOHN R. CALHOON, Supt." The cause was tried by the court without a jury, and judgment rendered

"Yours, etc.,

in favor of plaintiff for $1,040.60. To reverse this judgment, the present writ of error was sued out.

H. W. Hobson, for plaintiff in error.

error.

Hankey & White, for defendant in

HELM, J., (after stating the facts as above.) It may be important to note at the outset that this is not a suit for possession under the lease mentioned in the pleadings; it is an action for damages arising from an alleged violation of the contract. A careful examination of the record before us shows clearly that Elliott, who undertook to execute this lease, acted without sufficient authority in the premises. We shall assume that because of this want of authority the lease was originally not binding upon the company, and proceed to inquire whether the company's subsequent acts or omissions rendered it liable to plaintiff under the pleadings. A proper answer to this inquiry involves the consideration of two questions: First. Did the pleadings entitle plaintiff to the benefit of evidence tending to establish liability through the doctrines either of ratification or estoppel? and, second, if such proofs were admissible under the pleadings, did plaintiff thereby maintain his right to relief in the premises? The answer alleges as new and affirmative matter that when the company learned of the so-called lease it refused to recognize the same, or to be bound thereby, and expressly repudiated the agency and act of Elliott in connection therewith. Defendant contends that plaintiff's failure to deny these averments of the answer was an admission of their truthfulness, and deprived him of the right to introduce evidence in support of a subsequent ratification by the company. We do not think this position well taken. The proposition is elementary that a corporation acts only through its officers and agents. It is a rule of pleading scarcely less elementary that the allegation in the complaint that defendant made and executed the written contract referred to sufficiently avers the making of the instrument in behalf of the company by its duly-au-. thorized officers or agents. "The legal effect is the same whether it is said the company made the contract, or that it was made by the president and directors of the company. They both mean the same thing." Insurance Co. v. McDowell, 50 Ill. 120; Partridge v. Badger, 25 Barb. 146. But the averment that a certain contract was made by the corporation, through its authorized agent or officer, may be sustained by proof of subsequent ratification. Since the ratification is admitted to have a retroactive effect, it is treated by the decisions as tantamount to original authority. "The ratification by a principal of an unauthorized act of an agent has a retroactive efficacy; and, being equivalent to an original authority, we think that an allegation of due authority is sustained by the proof of such ratification." Hoyt v. Thompson's Ex'r, 19 N. Y. 207. The court in that case held that evidence of a subsequent ratification by the corporation was properly admitted, although the pleadings referred only to the making of the contract in the first instance. We conclude that it was competent for plaintiff to sustain the averment in his complaint by proof, showing either an original execution of the lease with due authority, or a subsequent ratification of Elliott's unauthorized act. This being true, it follows that we must regard the allegations of the answer relating to ratification as stating no new matter calling for denial by replication; in legal effect they amount only to a traverse of matter already set out by the complaint.

This brings us to the second question above stated, viz.: Is plaintiff entitled to recover upon the evidence introduced? Without discussing at length the subjects of ratification by corporations, or their estoppel by conduct, we shall answer this question affirmatively. Conceding that, under the company's by-laws, a lease of part of its realty could only be made or ratified by act of its board of directors; conceding also that such action as a matter of fact was never had in the case at bar,―liability to the plaintiff is not thereby avoided. Ratification of an unauthorized contract is often presumed from the failure of

the principal to repudiate within a reasonable time after notice of its existence; provided, the other party in good faith proceeded to and did expend money or labor under it. For more than 100 days after notice (by due course of mail) was given its president and secretary, the company remained silent. In the mean time plaintiff was permitted, by its agents in charge, to expend both labor and money, without return, in developing its property. Nor is this all; during upwards of 60 days of the time mentioned, plaintiff acted under the additional authority of Calhoon's letter. Calhoon was the superintendent and duly-accredited agent of the company; he was its sole representative in Colorado, and had entire control of its property and business here; he did not undertake to act upon his own responsibility with reference to the lease; on the contrary, he informed plaintiff that he had no sufficient authority; he corresponded with the company, and according to the weight of evidence, including his letter, gave plaintiff to understand that the company by proper proceeding had sanctioned the lease. Under the circumstances defendant cannot be held free from liability.

But, while holding that plaintiff was entitled to recover, we must hold the sum awarded excessive. He tendered no evidence showing the amount of his expenditures; he did not undertake to prove the exact number of days' work he performed individually under the lease, nor the value of such work. Neither did he offer any other proofs from which a court or jury could determine the extent of his injury in connection with the transaction. No punitive damages were asked, and, under the present rule in this state, none could be given. Murphy v. Hobbs, 7 Colo. 541, 5 Pac. Rep. 119. Nominal damages only should have been allowed plaintiff upon his own evidence. But under the terms of the lease he was to have 80 per cent. of the proceeds from ore extracted by him. The certificates of mill-runs introduced by defendant shows that the sum of $68.53 was realized by it in this way. We think the court might have awarded him 80 per cent. of this amount, but can find nothing to justify the recovery of $1,040.60.

We deem it unnecessary to remand the cause for a new trial. The judgment of the court below will be modified, and judgment entered in this court awarding plaintiff $54.83. The costs of the appellate proceedings will be equally divided between the parties.

(10 Colo. 191)

MAYOR, ETC., OF THE TOWN OF ASPEN v. ASPEN TOWN & LAND Co. (Supreme Court of Colorado. 1887.)

For opinion of the court see 15 Pac. Rep. 794.

ELBERT, J., (dissenting.) I concur in the conclusion that the judgment of the court below must be reversed, but dissent from some of the views expressed in the majority opinion. My opinion in brief is this: If the patent we are considering is to be given any effect, the title to the town-site in question (the term of office of the probate judge having expired) is in the corporate authorities of the town, who are designated in the patent as successors in trust. I rely on the terms of the grant. These terms must be construed in connection with the recitals contained in the patent. The grant is to "the said J. W. Deane, county and probate judge as aforesaid, and to his successors and assigns in trust as aforesaid." The "successors aforesaid" are the corporate authorities expressly mentioned in the recitals of the patent as the legal successors of the trust. It is not correct to say, as is said in the majority opinion, that "the granting clause of the patent is in the usual form conveying the title to the county judge and his successors and assigns in trust." On the other hand, the grant is to the county judge and "his successors and assigns in trust as aforesaid." The decisions cited in this connection by the majority opinion are undoubtedly correct, but it will be seen by what we have

said, and more fully by a careful perusal of the patent, that the patent before us presents an entirely different and distinct question from any raised in those cases. I submit that the terms of the patent support the view I have stated, and I know of no authority in conflict with it. Undoubtedly, where, under the law, the patent properly issues to the probate judge, the officers of the government cannot, as is claimed in the majority opinion, designate successors in trust other than those contemplated by the law; but in this case the patent did not properly issue under the law to the probate judge. The town was incorporated, and the patent should have issued to the corporate authorities. In saying this I assume nothing, nor do I attack the patent. I take it with its terms and the facts as they appear in its recitals, and construe it ex visceribus suis. The foregoing objection, therefore, made in the majority opinion, with respect to the power of the ministerial officers of the government, goes to the trustee designated, rather than to the successors designated. As it appears from the patent that the grant under the law should have been direct to the corporate authorities in the first instance, I see no legal difficulty in saying that they could take as successors in trust. This is the one respect in which the patent may, without violence, be sustained under the law as being an attempt to comply with the requirements of the law. Act Cong. March 2, 1667. I see no propriety in accepting the terms of the patent only in so far as they misdirect the title, and in rejecting them in so far as they vest the title again in the only proper trustees recognized by the law, under the facts disclosed by the patent. The grant is to "the said J. W. Deane, county and probate judge as aforesaid, and to his successors and assigns in trust as aforesaid." I interpret this clause, "that the matter may be of validity sooner than be lost," and the maxim is ut res magis valeat quam pereat. Broom, Leg. Max. 541. I am of the opinion, therefore, that, upon the expiration of the term of office of the probate judge, (if not before,) the title passed to the corporate authorities as the successors in trust named in the grant. This construction places the title where it should be, both by the terms of the grant and the law governing the grant. In this view no legal proceeding is necessary upon the part of the corporate authorities to perfect their title.

This view involves a dissent upon another point. The town of Aspen being an incorporated town, the patent, under the laws of congress, could lawfully issue to the corporate authorities only, and they alone could exercise the trust. The patent having improperly issued to the probate judge, if it passed the title, it does not follow that he could discharge the trust. He is in the position of one who has a trust-estate thrust upon him, in a case where the law designates other and different trustees. While we may treat him as holding the title to the trust-estate, we cannot treat him as clothed with the powers conferred by the law upon the proper trustees.

(16 Or. 540)

MILLER v. TOBIN.

(Supreme Court of Oregon. November 7, 1887.)

PUBLIC LANDS-DONATION OF SWAMP LANDS-CONFLICTING TITLES-REMEDY AT LAW. The act of congress of March 12, 1860, "to extend the provisions of an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits, to Oregon and Minnesota," was a grant in præsenti to the latter states of land that was in fact swamp land at the date of the act; and a party claiming such land under a patent from the state of Oregon has a complete remedy at law against one claiming under a patent from the government; and a suit at equity by the former against the latter to compel the conveyance of the latter's title to the former will, for that reason, be denied.

Appeal from circuit court, Klamath county; L. A. WEBSTER, Judge. Suit at equity by John F. Miller against James Tobin to compel the conveyance of the latter's alleged title in certain land to the former. The facts appear in the opinion.

v.16p.no.2-11

P. P. Prim, H. K. Hanna, and N. B. Knight, for plaintiff. B. F. Dowell, for defendant

LORD, C. J. This is a suit to have the defendant decreed to convey to the plaintiff the legal title to certain land described in the complaint, for which he holds a pre-emption patent from the United States, dated October 6, 1875. The plaintiff claims title to the same land under a deed executed by the state of Oregon to him, as swamp land, in pursuance of an act of the legislature, commonly known as the "State Swamp-Land Act," of October 26, 1870, upon his compliance, as alleged, with the provisions of that act. The complaint shows that the defendant is in possession of the land in question; that it has not been listed or patented to the state of Oregon by the secretary of the interior, whose duty it is so to do, primarily, under the act of congress of March 12, 1860, entitled, "An act to extend the provisions of an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits to Oregon and Minnesota, and for other purposes;" but that the state selected this land, together with other lands, as swamp lands, January 10, 1872; filed a notice of the state's claim, and a list of the selections, including the land in controversy, in the office of the surveyor general for Oregon, December 1, 1872, and in the United States land-office in Klamath county; and all other acts and things as required by the state swamp-land act as aforesaid. The plaintiff's deed from the state is dated July 5, 1882. It is also alleged that the said land is swamp; that the defendant well knew it to be such when he settled upon it as land subject to pre-emption, but that he falsely and fraudulently stated that said land was subject to private entry, etc., and procured the affidavits of James Hudson and Dennis Crowley "that the defendant had resided upon, cultivated, and improved the said described land as by the preemption laws of the United States required,” which affidavits were false and fraudulent, and well known so to be by the defendant at the time, etc.; "that the register of the United States land-office at Linkville, Oregon, relying upon the defendant's statement that said land was subject to private entry, and relying upon the said proof of settlement and improvement of said land, and believing the same to be true, permitted the defendant to enter upon said land, and thereafter to receive the patent therefor, to the great injury of the plaintiff;" "that the plaintiff is the owner of the equitable title to said land, and that the defendant ought, in equity, to convey to him the legal title to the same," etc.

As the first and main objection raised and relied upon is, in our judgment, decisive of this case, it is unnecessary to make further reference to the facts in the pleadings. That objection is that the facts stated do not present a case requiring equitable relief, or that the remedy of the plaintiff, if any, is complete at law. This will require some reference to the swamp-land act of congress, which we shall assume to be known without incorporating its provisions here. The swamp-land act is a grant in præsenti, by which the title to such lands passed at once to the state, upon the adoption of the act of congress of March 12, 1860, extending the provisions of that act to Oregon. It has been so held by the supreme court of the United States, (Railroad v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 169; Martin v. Marks, 97 U. S. 345,) and of this state, (Gaston v. Stott, 5 Or. 488,) and of the several states of the Union, (Owens v. Jackson, 9 Cal. 322; Kernan v. Griffith, 27 Cal. 87; Whiteside Co. v. Burchell, 31 Ill. 68; Keller v. Brickey, 78 Ill. 133; Fore v. Williams, 35 Miss. 533; Fletcher v. Pool, 20 Ark. 100; Hendry v. Willis, 33 Ark. 833; Allison v. Halfacie, 11 Iowa, 450; State v. Bank, 106 Ind. 436, 7 N. E. Rep. 379.) This view of the character of the grant has recently been sustained in Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985, by Mr. Justice FIELD, giving the opinion of the court, in which he shows, after an able and exhaustive examination, that the construction of the swamp-land act