manently removed. If she were to be removed, it would seem to be the duty of the court to ascertain whether there were facts which would demand her removal, or whether the facts were such that she should be retained in her office as executrix. The court thereupon made an order appointing referees to take testimony in the matter, and report their findings of fact. Upon the hearing before the referees, matters arose which resulted in the executrix being committed for conThe questempt; hence the habeas corpus. tion arises whether the court had authority to appoint the referees. If it had not, Mrs. Ming was guilty of no contempt in her conduct before the referees. Section 115 of the probate practice act says: "The issues raised must be heard and determined by the court." Section 113, just preceding, had given the judge power to suspend the executrix temporarily. The statute seems to regard the suspension as perhaps an emergency matter, and conferred the power upon the judge; but, upon the question of the permanent removal, it guards against any implication that the district judge could, at chambers, go on with the hearing, and provides, as quoted, that the court shall hear and determine. I think the intention here is to distinguish the court from the judge, and require that a matter of such importance should be determined in open court, and not at chambers. I do not think that the last sentence of section 115 is intended to prohibit the court from ordering a reference, if authority to do so appears elsewhere than in this section. The words "hear and determine" are words used in defining jurisdiction. All courts hear and determine the matters which come before them, including those matters as to which the court may unquestionably order a reference for its information. Even if there be a reference to hear evidence and report facts, the court finally hears and determines the issue. Therefore, I think that section 115 was not intended to prohibit a reference in such a matter.

If it be suggested that no issue was raised .here because the heirs had approved the executrix's account, I think it may be replied that there is the same issue here as could ever occur when a proceeding arises under sections 113, 114, and 115. Here the judge, of his own motion, without complaint of any one, "from his own knowledge or credible information" (section 113), suspends an executrix, and goes into a hearing as to whether such executrix should be permanently removed.

As

to whether the court had power to order a reference here, we find section 323 of the probate practice act provides: "Except as otherwise provided in this title, the provisions of the civil practice act of this state are applicable to and constitute the rules of practice in the proceedings mentioned in this title." Section 710 of the Code of Civil Procedure provides: "The provisions of this code, so far as applicable, shall govern the

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proceedings and practice in the probate courts of the territory in civil actions." Section 283 of the Code of Civil Procedure provides: “A reference may be ordered, upon the agreement of the parties, filed with the clerk, or entered on the minutes: Then follow subdivisions. Section 284 of the Code of Civil Procedure provides: "When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: First. Second. * Third. * Fourth. When it is necessary for the information of the court in a special proceeding." The court, in ordering a reference, recites as follows: "And whereas, on or about the 20th day of January, 1894, she filed a very voluminous report, containing many accounts, which said report was so extensive, covering a long period of time, as in the judgment of this court to demand a reference; and whereas, in the matter of the investigation of her fitness to continue her duties as executrix of this estate, as it appears, many accounts will have to be examined, and much evidence taken, which also, in the judgment of this court, is a proper subject for reference." It is then ordered that the referees so appointed "do examine in full the transactions set forth in the account, which the said Katherine L. Ming claims to be a full, true, and correct history of her transactions as executrix, and to take her evidence, and the evidence of such other persons as they may deem necessary, touching the transactions and the matters set forth in said account; and that the said referees do also take evidence upon the question of whether the said executrix is competent to manage the affairs of said estate, and upon the question of whether or not the said Katherine L. Ming has mismanaged said estate, or wasted any of the assets belonging to the same, or appropriated or misappropriated any of the funds thereof, and generally as to whether she has conducted herself in accordance with the laws of Montana regulating the duties of executors of estates." I think that these matters set forth in the order of reference were, in the language of section 284, Code Civ. Proc., necessary for the information of the court, and that, therefore, the court was empowered to make a reference in order to obtain the information as to these matters. The referees were to determine nothing. It was left to the court, after the referees collected the facts, to both hear the facts so collected and determine the matter. The referees were to examine into Mrs. Ming's management of the estate. Their appointment was not like an ordinary one to examine an account. The issue was as to whether Mrs. Ming should be removed. The examination of her accounts was an incident to that issue, or was evidence in the determination of such issue. I cannot see any valid objection, under the law, to the investigation as to her removal, or to the appointment of the referees to collect the evidence

and report the facts to the court. In this respect I also regret that I am compelled to differ from my associates.

(20 Colo. 268)

PATRICK et al. v. COLORADO SMELTING CO.

(Supreme Court of Colorado. Oct. 29, 1894.) ACTION ON CONDITIONAL CONTRACT-PLEADINGCONSTRUCTION-MEASURE OF DAMAGES.

1. When the promise declared on is in part conditional, and the performance or happening of the condition upon which the promise is to become absolute is not averred, the complaint is not sufficient, as to such conditional part of the promise, to sustain a recovery.

2. Where an action is brought upon a written contract, and the writing is set forth in haec verba in the complaint, such writing controls any allegation purporting to state the effect of the contract as a legal conclusion.

3. A contract to deliver a certain quantity of sulphide ores (grade or quality not specified) to a smelting company for the purpose of having the metal values contained therein extracted, and reduced to a marketable condition, for the benefit of the owner of the ores, after compensating the smelting company for the labor and expense of smelting, is not a contract for the sale of the ores.

4. Where parties agreed to furnish a certain quantity of sulphide ores to a smelting company for treatment, but the contract did not specify or provide for any particular body of ore, or ores of any particular grade, quality, or value, and the parties failed to furnish a portion of the ore as agreed, held, that the contract was purely executory, and that the smelting company could recover no more than nominal damages for a breach thereof, unless they should allege and prove the profits they could have realized from the smelting of such ores, of whatever grade, based upon the smelting charges to be paid therefor.

(Syllabus by the Court.)

Appeal from district court, Lake county. Action by the Colorado Smelting Company, a corporation, against W. F. Patrick, S. B. .Morgan, Theo. Stebbins, Joseph G. Whiting, and Katie L. Whiting, doing business as the Col. Sellers Mine, to recover for breach of contract. Plaintiff had judgment, from which defendants appeal. Reversed.

Amended complaint: "That the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the state of Colorado, and authorized to carry on, and engaged in carrying on, the general business of buying, handling, smelting, and refining ores in the county of Pueblo, state of Colorado, and elsewhere in said state of Colorado; and that plaintiff is now, and was at all of the times hereinafter mentioned, authorized to carry on, and engaged in carrying on, the general business of buying, handling, smelting, and refining ores in the said county of Pueblo, and elsewhere in the said state of Colorado. That the defendants are associated in transacting business as minIng copartners under the name and style of the Col. Sellers Mine, doing business in the county of Lake, state of Colorado, and that said defendants are now, and at all of the times hereinafter mentioned were, so as

sociated in business under said name, and operating said mine, and engaged in mining and selling ores in the said state of Colorado. That on the 12th day of January, A. D. 1884, the defendants herein, by and through the defendant W. F. Patrick, as their general manager, and as the general manager of the said Col. Sellers Mine, and who was then and there duly authorized for that purpose, did make and enter into a written agreement to and with the plaintiff herein, wherein and whereby said written agreement the said defendants did contract to sell and deliver to the plaintiff twelve thousand (12,000) tons of sulphide ores, the product of a certain mine known as the Col. Sellers Mine, said mine being then and there owned by said defendants, and situate in said county of Lake and state of Colorado, the terms and provisions of which written agreement upon the part of said defendants was thereafter, to wit, on the 18th day of January, A. D. 1884, duly accepted by the plaintiff herein in writing; the said acceptance being made by and through A. Eilers, who was then, and is now, the general manager of the plaintiff herein, duly authorized thereto by the plaintiff to execute the said acceptance aforementioned, which said written agreement upon the part of said defendants for the sale of said ores is in the words and figures as follows, to wit: 'Leadville, Colo. Jan. 12, 1884. A. Eilers, Esq., General Manager, South Pueblo, Colo.-Dear Sir: In regard to your proposition made to Mr. Franklin Ballou for 1,000 tons of sulphide ores per month, or 30 tons per day, for the term of twelve months, we beg leave to state that we will accept such a contract for the period of eight and one-half months, commencing upon the expiration of the Col. Sellers lease, which occurs on the 30th day of April next, 1884; and should the tenants of the Col. Sellers leased ground be unable or fail to furnish you in the interim with ore at the rate of 30 tons per day, or 1,000 tons per month, we will assume the responsibility of making good the deficit, with the proviso that orders already on our books, requiring the delivery of 700 tons per month, shall receive our first consideration. We add this clause from no apprehension of inability to meet your wants, but merely as a precaution against unforeseen causes which might arise in such a lapse of time, and over which we may have no control. The ore to be sampled in 100 or

50 ton lots, as we may elect. Price list, delivered on cars in Leadville, as follows: Lead on basis of 25c. per unit when above 4c. in N. Y., and under 4.25, and add or deduct 5c. per unit for each advance or fall of 14c. in New York. No pay for lead if 10 per cent. or under. Silver, 90 per cent. of New York quotation. Smelting charges, $21.50 per ton. Zinc standard, 12 per cent.; charge 50c. per unit for each per cent. above 12 per cent. Mr. Ballou informs us you did not intend to be in the market for this class of

ore until towards the middle of February, but, as a concession, have consented to commence receiving and sampling at once, deferring payments until your roasters are erected, which will require three or four weeks. The probabilities are, we shall not have to call on you for money for the first thirty days; but, should it become necessary, then the accommodation that you are willing to extend to the lessees will be satisfactory to us. To avoid all uncertainty in this matter, it will be best for us to add that, if the lessees decline to receive your offer for the time remaining on their lease, we will accept it for the full term of one year from say the 15th instant. Yours, truly, W. F. Patrick, Mgr. Col. Sellers Mine.' And which written acceptance on the part of said plaintiff is in words and figures as follows, to wit: 'South Pueblo, Colo., Jany. 18, 1884. W. F. Patrick, Esq., Manager Col. Sellers Mine, Leadville-Dear Sir: Upon my return to this place, I find your favor of January 12th, containing your acceptance of my proposition for 1,000 tons of Col. Sellers ore per month for the period of one year from Jany. 15th. To close this matter formally, I herewith agree to the terms as laid down by you in said letter of Jany. 15th. Yours, truly, A. Eilers. G. M.' That in pursuance of said contract of sale, as aforementioned, the said defendants did thereafter, during the said year 1884, commence the delivery of said ores thereunder, and did at various times during the period of one year from the 15th day of January, 1884, deliver to the plaintiff, at the said county of Lake, certain portions of the said sulphide ores, the product of the said Col. Sellers Mine. That during the times specified in the said agreement, to wit, from January 18, 1884, to January 19, 1885, the said defendants delivered to the plaintiff, under said contract of sale, four thousand eight hundred and twenty-eight (4,828) tons of the said sulphide ores, the product of said mine; and thereafter, during the year 1885, the plaintiff and defendants mutually agreed to extend the time for the completion of the said contract of sale, and the delivery of the said remainder of the said ores, over and above the said fcur thousand eight hundred and twenty-eight (4,828) tons; and in pursuance of the said extension the said defendants continued to deliver portions of the remainder of said ores so undelivered, from time to time, and the plaintiff accepted the said deliveries under said contract, the same continuing to be made up to and until the 2d day of May, 1887, during which period last aforementioned the defendants delivered under said contract of sale, and the plaintiff accepted thereunder, three thousand one hundred and seventy-two (3,172) tons additional, making a total delivery by the said defendants under said contract of sale, up to and including the said 2d day of May, 1887, of eight thousand tons (8,000) of said ores, leaving a balance undelivered upon said contract

of four thousand (4,000) tons. Plaintiff further avers that the said defendants failed, refused, and neglected to make any further deliveries under said contract of sale after the said 2d day of May, 1887, and declined and refused, after the date last aforementioned, to fulfil and further complete said contract of sale, although often requested so to do by the plaintiff, and the said defendants have never delivered or offered to deliver to the plaintiff herein the said remaining four thousand (4,000) tons of said ore, or any part thereof, which should have been delivered under the terms of said contract, and the said extension thereof, although the plaintiff was ready, willing, and anxious that said contract should be completed and carried out upon the part of said defendants, and it was always ready, willing, and able to receive and make payment for the said remaining four thousand (4,000) tons of said ore under and pursuant to the terms of said contract, and the said extension thereof; that ever since the execution of the said contract of sale the plaintiff has performed, all and singular, the terms and conditions of the said contract by it to be observed, fulfilled, and performed, and the said failure and refusal of the defendants to deliver the said remaining four thousand (4,000) tons of said ore was not caused by any wrong or fault upon the part of the plaintiff. Plaintiff further avers that after making of said contract, and during the time within which the said defendants should have delivered the said remaining four thousand (4,000) tons of said ore, under the terms and provisions of said contract of sale and the extension thereof as aforesaid, and at the time when the said defendants so failed and refused to make any further deliveries of said ore, to wit, on the 2d day of May, 1887, the market value of the class of ores mentioned in, and being the subject-matter of, the said contract of sale, increased and enhanced in value over and above the prices fixed in said contract for which the plaintiff was to pay therefor per ton, and that said increase and enhancement in said market value of said ores during the period, and at the time last aforementioned, amounted to the sum of ten dollars ($10) per ton, whereby the plaintiff sustained damages, by reason of the failure upon the part of the said defendants to deliver the said four thousand (4,000) tons of ore as aforesaid, in the sum of forty thousand dollars ($40,000), said sum being the increased and enhanced market value of the said remaining four thousand (4,000) tons of ore as aforementioned. Plaintiff further avers that, by reason of the defendants' failure to perform and complete their contract as aforesaid, the plaintiff has been deprived of the treatment of the said four thousand (4,000) tons of sulphide ore, and has been thereby deprived of the profits which it could have realized from the treatment of said ores, as well as other profits arising from the purchase of the said ores,

In the sum of forty thousand dollars ($40,000). Wherefore, plaintiff demands judgment against said defendants in the sum of forty thousand dollars ($40,000), and for its costs herein."

Answer: General denial of the several averments of the complaint.

Finding and judgment for plaintiff in the sum of $12,796.

C. C. Parsons and C. S. Thomas, for appelants. John M. Waldron and C. E. Gast, for appellee.

ELLIOTT, J. (after stating the facts). Two principal objections to the judgment are all that need be considered on this appeal:

1. Defendants contend that the damages awarded are largely in excess of what the averments of the complaint will sustain. The contention of plaintiff, the Colorado Smelting Company, is that defendants undertook to deliver ores to plaintiff at the rate of 1,000 tons per month, or 30 tons per day, for the period of one year; that only 8,000 tons were delivered, leaving 4,000 tons undelivered; and that plaintiff sustained damage to the amount of $10 for each ton of ore not delivered under the contract. Defendants contend that the contract set forth in the correspondence is not absolute, except for the period of 81⁄2 months. Their contention is that the proposition in the letter of January 12, 1884, in respect to the period from January 15, 1884, to April 30, 1884, is conditional only, to the effect that defendants will furnish the ore, should the tenants of the Col. Sellers leased ground be unable or fail to furnish the same during said period, and, further, that the proposition is also accompauied with the proviso that prior orders for ore shall be first filled by the defendants. Again, defendants insist that the proposition at the close of said letter, to the effect that defendants will furnish the ore for the full term of one year, is accompanied with an "If," which makes it conditional also. This view seems to us the correct one. The complaint does not aver the performance or happening of any of the conditions upon which any of the offers or promises of defendants were to become absolute for said period of 32 months. 1 Chit. Pl. (15th Am. Ed.) pp. 308-310.

2. It is true, in general terms, and as a natter of legal conclusion, the complaint states that defendants promised to furnish 12,000 tons of ore to plaintiff; but this general allegation is not borne out by the written correspondence set forth in haec verba In the complaint, showing the real contract between the parties. The special matters thus set forth in writing must be held to control the general allegation. Dillon v. Baroard, 21 Wall. 430; Everett v. Drew, 129 Mass. 150. Concluding, then, as we must, that the complaint states an absolute contract for the delivery of no more than 1,000

tons per month for the period of 81⁄2 months (that is, for 8,500 tons only), and it appearing from the complaint that 8,000 tons were actually delivered, it would seem that damages to the amount of $12,796 could not have resulted from the nondelivery of 500 tons.

3. The second objection is to the effect that, under the allegations and evidence, nominal damages only should have been awarded for the breach of the contract sued on. The theory assumed by the plaintiff company is that the contract set forth in the complaint was a contract of bargain and sale. This theory was, we think, properly disposed of by Judge Goddard at the conclusion of the trial. His opinion, inter alia, contained the following: "Counsel for plaintiff insist that its damage is the difference between the market value of the ore undelivered on May 2, 1887, and its value as fixed in the contract of January 15, 1884, upon the theory that the contract was for the sale of the ore at a stipulated price per ton, and that the ore had a market value. Upon the trial, I was of the opinion that the contract in question was not a contract of sale, and that the ore did not have a market value. In deference to the views of counsel, the question was left open, and an opportunity was given to present such evidence as they were of opinion would show, or tend to show, market value. Upon hearing the evidence, and upon further consideration, I am satisfied of the correctness of the opinion I then entertained. The agreement in suit is not, in terms, and was not, within the contemplation of the parties, a contract for the sale of the ore mentioned therein. While it provides for the delivery and disposition of the ore, it prescribes no grade or quality; it fixes no stipulated price per ton to be paid therefor. It is rather an agreement for the handling and treatment of so much ore, upon such terms as will realize to the mine owner the metal values contained therein, after compensating the plaintiff for its labor and expense in extracting such values, and reducing them to a marketable condition. These values may vary with each ton." The views thus expressed by the trial judge seem to us correct. As we have seen, the contract sued on consists of correspondence between the parties. The contract is not for the delivery of certain specific property, nor for the delivery of any particular body of cre or ores. It was for so many tons of sulphide Indeed, the correspondence of defendants nowhere specifies that the sulphide ores to be delivered should be the product of the Col. Sellers Mine, nor does it specify or provide for ores of any particular grade, quality, or value.

ores.

4. It would seem that counsel were in doubt as to whether the contract was one of bargain and sale, or whether it was a contract for the treatment of ores at certain specified charges, and so the amended complaint avers plaintiff's damages both ways,