Reaugh. For all work afterwards done upon written orders, or at the verbal request of the parties above named, with two possible exceptions mentioned in the opinion, Neis received full compensation from the company. It appears that the larger part of the account sued on was for labor performed at the verbal request of other bosses and employes than those mentioned, and after the giving of said notice to plaintiff. The cause was tried to the court without a jury, and judgment rendered in plaintiff's favor for the full amount of his claim. Appeal from this judgment.

Bennet, Mason & Havens, for appellant. W. E. Scott and R. H. Rhone, for appellee.

HELM, J. The ruling of the county court upon the motion to quash the service of process was correct. By the record before us we are advised that defendant's counsel made a full and unlimited appearance in that court, announced himself ready for trial, waived a jury, and permitted a witness to be sworn on behalf of plaintiff, before calling attention to the motion, which had, in the first instance, been duly submitted to the justice, and presenting his jurisdictional objections thereunder. By these acts (not considering the effect of taking the appeal) all objections on the ground of defective service were waived. Counsel in argument deny the truthfulness of the record in this particular, and assert that they presented the question without making a general appearance, and before anything else was done in the county court. It is hardly necessary to say, what they frankly admit, that we must be governed by the record, which in this court imports absolute verity.

Nor did the court err in refusing to strike out a portion of the testimony given by the witness Cole. It was proper for him to detail so much of the conversation between Neis and McHarg as he overheard. The fact that some things may have been said in this conversation which he did not hear, did not render this part of his testimony wholly inadmissibie. With the latitude allowed on cross-examination, the danger of injustice, adverted to by counsel, can hardly be said to exist. Besides, it may be further remarked that, even if this evidence were improperly admitted, we would not consider the error sufficient ground for reversal. The testimony objected to, with the accompanying admissions, was of very little importance, and could scarcely have received serious consideration.

Reaugh had full authority to prescribe the conditions upon which plaintiff should do work for the defendant company. It was competent for him, through his clerk, (McHarg,) to prohibit, as he did, any such work, except on written orders from himself or McHarg. It was perfectly proper, also, for him to enlarge this instruction or notice by excepting from its operation Hoffman and Donahue, two of the numerous "bosses" in the company's employ. It is clearly established that all the items in the bill sued upon referred to work done without written authority, and after plaintiff received the note above mentioned. Plaintiff, in rebuttal, testifies that on one occasion McHarg came with four or five wagons to be mended, and told him to do the work. He also says that Hoffman directed him to do some work for parties whom he previously refused because they had no written orders. His testimony concerning the wagons is directly contradicted by McHarg; but, as to these portions of his bill, the finding of the court below must be sustained. So far as there was conflicting testimony, it was one witness against another, and we will not presume to say that credit should have been given to McHarg instead of plaintiff. But we are not advised as to the amount of these items, and they cover only a part (probably a small part) of the bill sued upon. With reference to the remaining portions of the account, we have this state of facts: McHarg testifies clearly and unequivocally that plaintiff did the work without any authority, verbal or written, from either himself, Reaugh, Hoffman, or Donahue. In answer to this evidence, there is simply the declaration by plaintiff, in rebuttal,

"that all the work done on that bill sued for was done by the written or verbal orders." It will be observed that he does not assert the work to have been performed upon the written or verbal orders of Reaugh or McHarg, or even upon the verbal orders of Hoffman or Donahue. The declaration of plaintiff is consistent with the proposition that the work referred to, or at least a part thereof, was done under the verbal orders of employes other than those from whom he was authorized to receive such orders. And this construction of the language is sustained by his own testimony in chief. He there admits that after August 12th the various wagon, corral, and stable bosses had work done without orders, expressly mentioning the name of Callihan, a stable boss. Thus this unimpeached testimony of McHarg is corroborated by that of plaintiff himself. The court allowed the full amount claimed by plaintiff upon his entire account. It is therefore clear that the judgment given covered, in part at least, work for which, under the testimony before us, plaintiff was not entitled to compensation. It will for this reason be reversed, and the cause remanded for further proceedings.

(10 Colo. 94)

CHAMBERLIN and others v. GILMAN. (CITY NAT. BA OF DENVER, Intervenor.)

(Supreme Court of Colorado. May 18, 1887.

1. GARNISHMENT ASSIGNMENT.

The keeper of a boarding-house for railroad employes made an agreement with the railroad company whereby the boarding dues of each employe were deducted from his pay, and forwarded in the form of a check to the boarding-house keeper each month. Subsequently he procured an advance of money from a bank on the credit of the amounts which were to fall due on the following pay-day, and by promising to turn such amounts over to the bank. The railroad company consented to transfer such payments to the bank. Held, that this constituted an equitable assignment of such sums so as to vest title in the bank as against a creditor of the boarding-house keeper, who garnished the same in the hands of the railroad company.

2. SAME-ACTS OF DEBTOR.

Subsequent declarations of the boarding-house keeper indicative of an intention to set apart such sums to the payment of his debt to plaintiff in garnishment are not admissible in evidence to impeach the title vested by the prior assignment. 3. SAME-CHECK.

The mere fact that the railroad company, after it had consented to the transfer of the indebtedness to the bank, continued to draw its check in favor of the boarding-house keeper, held, not to divest the bank of the title acquired under the equitable assignment.

4. SAME NOTICE.

Whether the railroad company had notice of such assignment in no way affects the rights of plaintiff in garnishment, and therefore the admission of evidence of such notice is not prejudicial error.

5. FRAUDS, STATUTE OF ASSIGNMENT OF CLAIM.

Such an assignment may be by parol, and is not affected by Gen. St. Colo. ?? 1523, 1527, which require sales and assignments of goods, and grants or assignments of trusts, to be evidenced in writing.

6. TRIAL INSTRUCTION-GARNISHMENT.

Where the intervenor in a garnishment claims title through an equitable assignment of the fund, based, in addition to other evidence, upon verbal declarations and conduct, it is not error to refuse an instruction which assumes that the intervenor's title depends solely upon a written order.

STALLCUP, C., dissenting.

Appeal from county court, Arapahoe county. L. C. Rockwell, for plaintiffs in error. in error.

Benedict & Phelps, for defendants

RISING, C. The appellants brought an action against B. M. Gilman upon book-account, and garnished the Denver, South Park & Pacific Railroad Company as a debtor of Gilman. The garnishee answered that it had $1,495.88

in its hands in checks it had drawn in favor of Gilman, and that said sum and checks were claimed by the City National Bank of Denver under some agreement between itself and said Gilman, and asked that the court make an order that said bank be brought into court as a claimant for this money, and prove its title thereto. The bank filed a petition of intervention, in which it was alleged that Gilman was, at the time of the commencement of this suit, and had been for many months prior thereto, the keeper of a boarding-house at Como, on the line of said railroad, and had, during such time, been accustomed to board divers employes of said company, but not for the company; that said company, in consideration that the rates of board should not exceed a certain just and reasonable rate agreed upon, had agreed to retain from the pay of its employes boarding with said Gilman, each month, such amounts as were severally due and owing from such employes to said Gilman; that at the end of each month a considerable portion of the pay of the company's employes was to be paid over to said Gilman, or, upon his order, to whom he might direct; that, at least three or four months prior to the service of the said garnishee summons, the said Gilman, being about to procure, by loan, from the said bank, money to enable him to maintain and carry on said business, and in order to secure said bank therefor, gave to the officers of said company orders and instructions to pay to the said bank all moneys due or to become due him under said agreement, and so to continue until otherwise directed, to which said company assented; that said bank, relying on said orders and instructions so given, and said company's assent thereto, advanced and loaned to said Gilman, solely upon the strength of the said orders, etc., $1,500; that said company made payments to said bank as directed, and, upon the faith of such payments having been made, and that they would continue to be made, said bank made other advances and loans to said Gilman; that on the third day of April, 1882, while the orders and directions aforesaid were in force, it appeared that there was due to said Gilman, for board of employes of said company for the previous month of March, about the sum of $1,500, which would be paid during said month of April; said bank, at Gilman's request, and relying solely upon the moneys to be paid to it by said company, again advanced and loaned to said Gilman the sum of $1,500, having no other security for said loan than the payment to be made by said company as aforesaid; that, at the time of the service of the garnishee summons, said sum of $1,500 was still unpaid, and said sum of $1,495.88 was still in the hands of said company's officers, but held for said bank; and that the same was about to be paid over to it. Demands judgment for said sum of $1,495.88.

Plaintiffs, answering the petition of the bank, admit that there is a contention between plaintiffs and said bank regarding the right of the money in the hands of the company; admit that there was due from the company to Gilman, for the month of March, at least the sum of $1,500, and that the company has answered as garnishee in the action, and deny specifically all other allegations.

Judgment in favor of plaintiffs against Gilman upon the pleadings. Trial to a jury of the issues joined between plaintiffs and said bank as intervenor, and judgment thereon in favor of intervenor against the plaintiffs for its costs. From this judgment plaintiffs appeal.

The claim of appellee to the money in controversy rests upon a claimed equitable assignment of the money due Gilman from the railroad company for the board of its employes for the month of March, 1882, under an agreement between said Gilman and said company; and also upon the claim that, at the time of the service of the garnishee summons on the company, the officers of the company held this money as the money of and for the bank. Appellants' claim to the money rests upon the rights of an attaching creditor, and is based upon the claim that no interest in the March indebtedness of the employes of

the railroad company passed to the bank by reason of the transactions between Gilman and the bank.

What was the transaction between Gilman and the bank in relation to the loaning of money by the bank to Gilman? The witness Gilman testifies that about the first of December, 1881, he made an agreement with the bank to obtain money due him from the railroad company by turning over to the bank money which would be due him on the following pay-day; that he got about $1,500 from the bank; that that sum was due him from the company at the last of the month; that he showed to Mr. Hanna, the cashier of the bank, how much the board-bills amounted to on their face, and that these bills would be likely to be paid about the twentieth of the month; that this arrangement was renewed again in January; that in January he told Mr. Hanna that he had to go south on account of his wife's illness, and that he wished to have this arrangement continued until his return; that his brother, C. S. Gilman, was fully authorized to act as his agent during his absence, and that his brother would go on and do every month just as he had done; that Mr. Hanna wished him to notify the pay-master of the fact that he was going away, and the arrangement was to be continued during his absence, and he said he would do so; that, before he went south, he saw the pay-master, and, in speaking about this arrangement with the bank, the pay-master said he would continue to do as he had done until further orders; that he returned from the south in April. The testimony of the witness Hanna corroborates the testimony of the witness Gilman, and further shows that Gilman told him how much the pay-rolls were after they were made up; that on the third day of April the bank loaned Gilman $1,500; that the money was to be paid during the month; that witness thinks it was for the March indebtedness; that there was no difference between this transaction and previous ones; that the bank got the checks made by the company to Gilman each and every month until April.

We have given the substance of the evidence relating to the transaction of April 3, 1882, between the bank and Gilman, and relating to the facts leading up to that transaction.

In relation to the carrying out of the different arrangements made between Gilman and the bank, the witness Bush testifies that from November, 1881, to April, 1882, he was employed as clerk in the pay-master's office of the Denver & South Park Railroad. That Horace W. Fisher was pay-master, and witness' duties were to assist the pay-master in general. That each head of departments sent in to the time-keeper the time of the men in his employ. That Gilman sent in to the time-keeper any stops he might have against any of the employes. The time-keeper made up his pay-roll, and put against the several parties named the stops as required by Gilman; that is, he noted how much was to go from each man to Gilman. These rolls, after they were made up, were forwarded to the auditor at Omaha, examined, and checks made and signed for the several amounts, and the pay-rolls and checks were returned to Denver to the pay-master. When a part of a man's wages had been stopped for his board, a check would come for the amount due him, less the amount of "stop" for board. The amount of the stop would come in a check in favor of Gilman. That he heard Gilman say to the pay-master that he had made an arrangement with the bank to get money on the checks coming to him, and he desired to give the pay-master an order to pay over to the bank, from time to time, the checks coming to him. That, early in the spring, Gilman, who was going down south, came to the office, and told Mr. Fisher that he wanted to give him a continuous order to pay over to the bank the checks regularly, and said that he had authorized his brother Charles Gilman to receive them, and deliver them to the bank, and indorse his name on the back of them. That there were four or five payments before the last payment. That, upon Gilman's order, the pay-master transferred the checks to the bank. They were payable to the bank by Gilman's indorsement. The checks were indorsed by Gilman, and then transferred to the bank by Fisher, and the

bank's receipt taken. That he was present when payment was being made in April. That Charles Gilman called for the Gilman checks. That the Gilman checks had been marked paid on the roll, and countersigned by the pay-master, and all but two or three of them had been indorsed by Charles Gilman for his brother Ben when the garnishee notice came into the car. That the transaction in April was conducted as all their payments were previous to that order.

The witness Dunlevy testifies that he was connected with the City National Bank, and had been for three years and over; that he knew of checks being made payable to Benjamin M. Gilman by the South Park Railroad Company, which checks came to the bank during the months of December, January, February, March, and April. They were sent to the bank by Mr. H. W. Fisher, or brought by him, personally. At no time while the bank was carrying Gilman, did he or his brother bring these checks.

We think the evidence shows an equitable assignment by Gilman to the bank of the March indebtedness of the railroad company to Gilman, and that the railroad company had notice of such assignment, and assented to it. The assignment of the indebtedness for the months of November, December, January, February, and March was a separate and distinct transaction for each month. At the time of the assignment, in each case, the indebtedness assigned existed, and the amount had been ascertained.

There can be no question but that an assignment can be made of such indebtedness, and that, under our statutes, the assignee takes a legal interest in the matter assigned. Patton v. Coen and Ten Broeke C. M. Co., 3 Colo. 265; Pom. Eq. Jur. 1271, 1273. An assignment of a debt may be by parol, and may be inferred from the acts and conduct of the party. 1 Pars. Cont. 229.

In the argument much attention was given to the question of notice to the railroad company of the transfer of the indebtedness by Gilman to the bank. So far as the rights of the parties to this action to the money in controversy are concerned, the question of notice to the company is wholly immaterial. The rights of the parties to this action must be determined by the character of the transaction between Gilman and the bank in relation to this money. If, as between Gilman and the bank, the bank became the owner of the indebtedness, Gilman's creditors could not obtain any interest therein by attachment. The creditor can only reach the interest of the debtor, and after the assignment to the bank Gilman had no interest in this indebtedness. Pom. Eq. Jur. 694, 697, 700. The interest assigned is regarded as property. Pom. Eq. Jur. 1280, note 2. The notice to the debtor, in case of an equitable assignment, is to bind the debtor. In this case, the railroad company, as debtor, had notice, and acted upon the notice. The fact that the checks were drawn to Gilman by the railroad company does not change the ownership of the indebtedness. Gilman having assigned his interest therein to the bank, and the railroad company having notice of such assignment, and having assented thereto, could not reinvest Gilman with the ownership by drawing checks for the amount to Gilman. A payment by the company to Gilman would not, under the circumstances of this case, have released the company from its liability to pay the bank. It is plain, from the conduct of Gilman and the company, that the drawing of the checks to Gilman, and getting his indorsement thereon, was a matter relating to the manner of making payment to the bank. Appellants' counsel cites the fourth subdivision of section 1521 and sections 1523 and 1527 of the General Statutes. We do not think the assignment by Gilman to the bank of the indebtedness of the railroad company to him comes within the statute of frauds.

Under our view of the law applicable to this case, under the evidence, the instruction given to the jury by the court below was more favorable to appellants than they had a right to ask. The instructions left it to the jury to determine from the evidence, not only whether there was an arrangement be