186
140 P A C I F I C R E P O R T E R
p a r t y of t h e second p a r t his rights, privileges,
a n d benefits which he * * * now holds"
constitutes the only conveyance contemplated. If Brier had any rights, benefits, or
privileges a t the time, it w a s only the personal permission of Day to use the unpatented process, and an agreement to assign an
interest in the p a t e n t in t h e event of its irsue, covering t h e s t a t e of Colorado. If this
language be said to refer to a government
patent, then t h e assignment, to be valid, m u s t
be m a d e and recorded as provided by t h e
s t a t u t e . T h e contract to sell, in question,
clearly required a valid conveyance, and a
valid conveyance in such case must necessarily be in writing. T h e r e can be no valid
existing conveyance until it is recorded in
the p a t e n t office. I t is therefore t h e clear
duty, and in this case a necessary prerequisite to t h e bringing of the suit, if the action
might otherwise be maintained, t h a t the
plaintiff should have tendered such a conveyance.
[3] T h e defendant cannot be required to
perform his part, a n d t h e plaintiff be permitted to perform or not, a t his own will.
In Gilpin v. W a t t s , 1 Colo. 479, i t w a s said
(pages 482, 483): " I t is t r u e t h a t t h e bill
contains an offer to produce, subject to the
order of t h e court, t h e conveyance which, it
is averred, complainant had before tendered
to the defendant; but t h e r e i s nothing to
show t h a t such conveyance was, in fact, ever
brought into court or delivered to any officer
of c o u r t ; and, t h e original cause being determined by the final decree, i t appears to
us doubtful whether t h e defendant h a s any
remedy to compel its production. The decree
ought to be a final determination of the
whole controversy, so far a s the case-made
w a r r a n t s . The purchaser ought not to be required t o pay t h e purchase money, a n d t h e n
resort to his motion or bill of review, or othe r process, if there be any effectual to this
end, to secure a conveyance."
[4] B u t the contract a t best is a mere option. I t contains no express or implied
agreement on the p a r t of S t r a u s s to buy, n o r
to pay for, t h e p a t e n t right.
[5] To make a contract of sale enforceable,
t h e r e m u s t be m u t u a l obligations, and in such
a case t h e covenant to convey and the coven a n t to pay a r e dependent obligations; each
is a condition precedent to the other. Iloagland v. Murray, 53 Colo. 50, 123 Pac. 0G4.
In this case, and for these reasons, t h e
plaintiff is not entitled to recover under t h e
agreement as originally made or as amended.
The record discloses no equities in favor of
t h e defendant in error. Indeed, t h e transaction upon his p a r t may well be characterized in h a r s h e r terms. The j u d g m e n t upon
t h e two items u n d e r the second and t h i r d
causes of action w a s upon different and independent transactions.
The j u d g m e n t is reversed, with instructions to enter a j u d g m e n t in favor of the
(Colo.
plaintiff below in the sum of $G3, the amount
found to be due for merchandise a n d rent,
and to t a x the costs of the proceeding to t h e
plaintiff.
MUSSER, C. J., and GARUIGUES, J., concurring.
BROMLEY v. HALLOCK.
(Supreme Court of Colorado. April 6, 1914.)
E L E C T I O N S (§ 180*)—BALLOTS—EXPRESSION OF
CHOICE.
Under Rev. St. 1908, § 2236, providing that
when the name of a party is written in the
blank space at the head of a ballot, in the form
"I hereby vote a straight * * * ticket, except where I have marked opposite the name
of some other candidate," it shall be counted
for all the nominees on said ticket, except lor
any office where a mark has been made opposite
the name of a candidate of another party therefor, there being on the ballot the tickets of the
"Democratic," "Republican,"
"Progressive,"
"Roosevelt," and "Bull Moose" parties, a ballot,
on which in said blank space is written either
"Progressive,
Bull
Moose,"
"Progressive,
Roosevelt, Bull Moose," "Progressive, Roosevelt," or "Roosevelt, Progressive," is to be
counted for a candidate on the "Progressive"
ticket for an office for which there is no candidate on the "Roosevelt" or "Bull Moose" tickets; there being no mark against the name of
any other candidate for the office.
[Ed. Note.—For other cases, see Elections,
Cent. Dig. §§ 151-155, 157; Dec. Dig. § 180.*]
E n Banc. E r r o r to Chaffee County C o u r t ;
Joseph Newitt, Judge.
Election contest by J. W. Halloek against
Frederick A. Bromley. J u d g m e n t for contestant, and contestee brings error. Reversed and remanded, with instructions.
Gilbert A. Walker, of Buena Vista, and
George D. Williams, of Salida, for plaintiff
in error. Wallace Schoolfield, of Salida, for
defendant in error.
H I L L , J. At t h e November, 1912, election,
the parties to t h i s action were rival candidates for t h e office of county clerk a n d recorder of Chaffee county. Mr. Halloek w a s
the regular Democratic nominee. Mr. Bromley was the regular nominee of the Republican party, also of the Progressive party. On
the face of t h e r e t u r n s Mr. Bromley w a s
elected by a majority of 13. Mr. Halloek instituted this contest.
Issues were joined,
and upon final t r i a l a decree was entered
awarding the office to Mr. Halloek.
The
court, on recount, declared his majority to
be 26. Mr. Bromley prosecutes t h i s writ of
error.
In addition to the Democratic, Republican,
a n d Progressive parties, who had candidates
for presidential electors, United States senators, congressmen, state, district and local
county offices, except the Progressive p a r t y
h a d no candidate for representative for Cha ffee county, or for county treasurer, county
judge, or county surveyor, the ballots disclose t h a t there were also thereon t h e noin-
•For other casPs see same topic and section NLiMBER 1:n Dec. Dig & Am. Dig Key-No. Series & Rep'r Indexes
Colo.)
BROMLEY r . HALLOCK
187
inees of what was called the Roosevelt and space above provided for, the name of the
the Bull Moose parties, each of which had party whose ticket he may wish to vote, and
candidates for presidential electors, United any ballot so east shall be counted for all the
States senators, congressmen, and state of- nominees upon said ticket, except when the
fices, but which parties had no district or lo- voter has marked opposite the name or names
cal county candidates upon the ballot, also of any individual candidate of some other
that the Bull Moose had no candidate for party, which indhidual marks opposite such
Congress for the second district. Otherwise, individual candidate shall count for them,
the candidates of the Bull Moose party, as and shall no! le counted for the candidates
well as those upon the Roosevelt ticket for for the same office upon the ticket whose
United States senator, congressmen, and party name the voter has so fdled in the
state offices, were identical with the candi- blank at the head of the ticket."
dates for those offices on the Progressive
Section 2265 in part reads: "If a voter
ticket, so that in so far as the Roosevelt and marks in ink more names than there are perBull Moose parties had candidates for any sons to be elected to an office, or if, for any
office, they were identical- with each other, rea«on, it is impossible to determine the
and were also identical with the candidates choice of any voter for any office to be filled,
of the Progressive party for such offices. his ballot shall not bo counted for such oflice.
Stated differently, every candidate for any Provided, however, a defective or an incomoffice upon the Bull Moose ticket was also a i plete cross marked on any ballot in ink, in
candidate for the same office on the Roose- a proper place, shall be counted if there be
velt and Progressive party tickets, and ev- no other mark or cross in ink on such ballot
ery Roosevelt party candidate on the ticket I indicating an intention to vote for some perwas also a candidate for the same office on son or persons or set of nominations, other
the Bull Moose and Progressive tickets, ex- than those indicated by the first mentioned
cepting only that one McUain was the nom- defective cross or mark, and where a cross is
inee of the Progressive and Roosevelt party marked in ink against a device indicating a
for congressman from the second district, but vote for the entire set of candidates, and also
was not the nominee of the P>ull Moose par- another cross in ink against one or more
ty for such office; it having no candidate names in another list, such ballot shall only
for Congress for the second district.
be held invalid as to any office so doubly
Upon recount the court found, which find- marked."
ing is sustained by the evidence, that in the* Section 2266 following reads: "If an imperblank space provided for the writing in of fect cross or mark be found near the name of
the name of a political party, there were 9 a candidate in ink, which mark appears to
ballots which had the words written in this have been made with intent to designate the
space "Progressive, Bull Moose," 15 with the candidate so marked as the one voted for,
words "Progressive. Itoosevelt, Bull Moose," such ballot shall not be rejected, if the in7 "Progressive, Roosevelt," and 2 "Roosevelt, tent of the voter to designate the person
Progressive," and that none of these ballots for whom he Intended to vote can be reasonhad any cross mark, defective or otherwise, ably gathered therefrom; provided, that if
opposite or near the name of any candidate marks placed opposite the names of individufor the office of county clerk and recorder. al candidates shall work to a complete exUpon this finding the court held that these clusion of the candidates of the party, the
ballots did not disclose any intendment by | designation of which has been written in at
either or any of the electors casting them to the top of the ballot, and the intention of the
vote for the contestee, and declined to count voter is clear, it shall not be necessary to
them for him. In this the trial court erred. strike out the names of the candidates
Mr. Bromley was the candidate upon the against whom it is desired to vote."
Prosxessive ticket. Wherever there were anv
These sections were all in force at the time
candidates upon the Bull Moose or Roosevelt of this election and contain the only express
tickets for any office, they were the same as provisions in our election laws as to what
on the Progressive; the only difference be- constitutes a defective ballot so that the same
ing that while the Progressive party had can- shall not be counted. They do not include
didates for all national and state, and nearly one like those under consideration. 'TIs
all district and local county offices, the oth- true that an elector, in order to properly
er two did not have any candidates for dis- express his choice, must do so substantially
trict or local comity offices, or the Bull Moose in the manner provided by statute. Young v.
a candidate for congressman in the second Simpson, 21 Colo. 460, 42 Pac. 666, 52 Am.
district.
St. Rep. 254; Heiskell v. Landrum, 23 Colo.
Section 2236, Revised Statutes 1908, in 65, 46 Pac. 120; Rhode v. Steinmetz, 25 Colo.
part reads: "That across the head of the bal- 308, 55 Pac. 814; Wiley v. McDowell, 133 Pac.
lot, and just above the lists of nominations, 757; Whittam v. Zahorik, 91 Iowa, 23, 59
shall be printed the words: 'I hereby vote a N. W. 57, 51 Am. St. Rep. 317; Vallier v.
straight * * * ticket, except where I Brakke, 7 S. I). 343, 64 N. W. 180. It appears
have marked opposite the name of some oth- to us that this requirement was complied
er candidate,' and any voter desiring to vote with by the electors casting these ballots.
a straight ticket may write within the blank The plaintiff in error was the candidate upon
188
(Colo.
140 PACIFIC E E P O R T E R
t h e Progressive t i c k e t ; h e w a s also upon t h e
Republican ticket. When these voters wrote
in t h e word "Progressive," they indicated
t h e i r intention to vote for all t h e candidates
upon t h a t ticket, unless they performed some
act otherwise which tended to defeat or
n e u t r a l i z e such intention. T h e w a y provided
by s t a t u t e to h a v e annulled t h i s expressed
intention, a s against any candidate for whom
they did not desire to vote, w a s to m a k e a
cross m a r k opposite t h e name of his opponent, a n d if two or more were r u n n i n g for
offices of t h e same name, to r u n a line
through t h e name of the p a r t y for whom
they did not desire to v o t e ; neither w a s done.
Other methods which might have t h i s effect
need not be considered; they a r e not involved. T h e fact t h a t t h e electors in some
instances followed a n d i n others preceded
Mr. Bromley's p a r t y name with t h e insertion of t h e words "Bull Moose" or "Roosevelt," or either o r both of them, did not, u n d e r
t h e circumstances above disclosed, in any manner tend to contradict or neutralize t h e intention of t h e voter in voting for Mr. Bromley. T h i s is readily a p p a r e n t for t h e reason, among others, t h a t if these ballots w e r e
counted for all t h e candidates whose p a r t y
n a m e s were w r i t t e n in a t t h e top, i t would
n o t disclose a n y intention t o vote for a n y
one not on t h e Progressive ticket, as t h e r e
w a s no one on either of the other tickets who
w a s not on t h e Progressive. T h e voter having substantially complied with t h e law, a n d
his intention t h u s given not being in conflict
with a n y other expression to be gathered
from t h e ballot, i t m u s t be given effect a s
e x p r e s s e d ; and, when t h u s applied, Mr.
Bromley i s entitled to these votes, a s he
w a s t h e only c a n d i d a t e for t h i s office on a n y
of t h e s e tickets, a n d t h e only one for whom
they could h a v e been intended.
I n Nicholls v. Barrick, 27 Colo. 432, 62
Pac. 202, Mr. Nicholls was t h e c a n d i d a t e of
t h e Republican p a r t y for sheriff, a n d Mr.
B a r r i c k w a s t h e candidate of t h e People's,
Silver Republican, Teller Silver Republican,
Democratic, a n d Populist parties.
It was
shown t h a t these last-named several political p a r t i e s h a d united upon t h e same ticket,
each filling t h e ticket under i t s distinctive
p a r t y n a m e ; t h a t t h e ticket w a s generally
spoken of by newspapers a n d t h e people a s
t h e fusion ticket, a n d t h a t t h e only opposition ticket w a s t h e Republican. On 4.'? ballots each voter h a d w r i t t e n i n t h e blank
space provided t h e word "Fusion."
When
t h u s filled out they read, " I hereby vote a
s t r a i g h t Fusion ticket." I t w a s held t h a t
tkese ballots clearly showed t h e intent of t h e
voter, a n d should be counted for t h e candid a t e on t h e combined tickets of these several
p a r t i e s ; t h a t they were substantially m a r k e d
as t h e l a w requires sufficient to justify their
being counted.
T h e principles t h e r e announced a r e specially applicable to t h e facts
here. T h e electors casting these ballots come
much nearer in complying literally with t h e
s t a t u t e t h a n those whose ballots were under
consideration in t h e former case, and t h e i r
intention, not having been neutralized in a n y
respect, when applied to t h i s office, m u s t be
given effect as expressed.
T h e case of Wiley v. McDowell, supra, does
not support t h e position of t h e defendant in
e r r o r ; to t h e contrary, i t s record discloses
t h a t McDowell w a s t h e candidate upon t h e
Republican a n d Progressive tickets only, a n d
t h a t he w a s given t h e benefit of all ballots
which h a d either of these party names w r i t ten in a t t h e head. l i e also contended t h a t
t h e r e should be counted for him t h e ballots
which h a d t h e words "Bull Moose" or "Roosevelt" only w r i t t e n in a t t h e head of t h e ticket, although h e w a s n o t on either of such
tickets, but relied solely upon evidence aliu n d e to establish t h a t they were intended
for him. This court refused to adopt h i s
theory for t h e reasons stated in t h e opinion.
When those 33 ballots a r e added to Mr.
Bromley's total, i t gives him a majority,
even though all other contentions were decided against him ; this makes it unnecessary toconsider them.
T h e j u d g m e n t i s reversed, and t h e cause remanded, with i n s t r u c t i o n s to dismiss t h e action a t t h e costs of t h e defendant i n e r r o r .
Reversed, with instructions.
SCOTT, J., not participating.
ERISAUGII v. P E O P L E .
(Supreme Court of Colorado.
April 6, 1914.)
1. C R I M I N A L L A W (§ 1150*) — A P P E A L — R E VIEW — R E F U S A L OF C H A N G E OF V E N U E —
P R E J U D I C E OF I N I I A H I T A N T S .
The question of prejudice of the inhabitants, on which change of venue is asked, being triable to the court, and resting in its discretion, its denial will not be disturbed, except
for abuse of discretion.
[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 3044; Dec. Dig. § 1150.*]
2. C R I M I N A L L A W (§ 137*)—CHANGE OF V E N U E — P R E J U D I C E OF J U D G E — H E A R I N G AND
DETERMINATION.
The questions of law, on application of a
defendant in a criminal case for change of venue for prejudice of the judge, going to the sufficiency of the complaint against the judge and
the affidavits in support thereof, in form and
substance, the judge has jurisdiction to hear
and determine; but, these being sufficient, he
cannot try the question of fact, of his prejudice,
but has jurisdiction only to grant the change;
Rev. St. 190S, §§ 6003, 0964, relative thereto,
being mandatory.
[Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 253; Dec. Dig. § 137.*J
3. C R I M I N A L L A W (§ 1144*)— A P P E A L — P R E S U M P T I O N — W A I V E R OF O B J E C T I O N S .
Objections that the petition for change of
venue was not filed till the morning of the trial,
and that the district attorney was not served
with notice, will be presumed waived; the record, showing that he appeared and participated
•For other cases see same topjc and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series &. Rep'r Indexes