
    Hanna v. Barker.
    1. Under chapter 104, General Laws (1877), the husband may be permitted to testify in a cause wherein the separate property of the wife is concerned.
    2. The averment of a fact in an answer which is presumptively within the knowledge of -the defendant may not be stated on information and belief, but positively.
    8. A conclusion of fact derived from observation and knowledge of the subject matter on the part of a witness may not be construed as being an opinion merely; nor is it a correct proposition of - law that no one but an expert can give an opinion to a jury.
    4. Errors, under the rules of this court, must be separately alleged and particularly specified. •
    5. The statement of a conclusion arising from facts under the law is not prohibited in any system of pleading.
    
      Appeal from District Court of Arapahoe County.
    
    The complaint in this case alleges substantially as follows: “ That on December 11, 1877, the two defendants (appellant) and George W. Parker entered into an agreement in writing with the plaintiff (appellee) and Anselm H. Barker, Wm. N. Byers and Joseph L. Bailey, as follows:
    “This article of agreement, made this 11th day of December, A. D. 1877, between Anselm H. Barker, William N. Byers and Joseph L. Bailey, parties of the first part, and James W. Hanna and George W. Parker, parties of the second part, all of the county of Arapahoe' and state of Colorado, witnesseth:
    “That the said parties of the first part, Anselm H. Barker, William N. Byers and Joseph L. Bailey, have this day relinquished all their right, title, interest and claims of every nature and kind to James W. Hanna and George W. Parker, parties of the second, part, in and to the claims numbered one (1), two (2) and three (3), on the lode recorded in 1859, by A. H. Barker and company, as the Casto lode, in Central City mining district, in Gilpin county, Colorado, being three hundred (300) feet in length by fifty (50) feet in width on said vein or lode, and east of the discovery claim; also Nos. 1, 2 and 3 east from discovery on the Dean lode, in same mining district.
    “ In consideration of the above i*elinquishment by the aforesaid parties as above described, the said James W. Hanna and George W. Parker agree that whenever they shall make a sale or any other disposition of said property by which the title passes out of their hands, or shall make any compromise with any party or parties who may hold any claim or incumbrance of any nature on said above described property, or shall cause the said property to be released from all claims now existing; so that the said James W. Hanna and George W. Parker, or either of them, shall hold a title, clear of all incumbrances now existing, to said property, and including an incumbrance to be given by the said James W. Hanna and George W. Parker to secure money wherewith to meet the said liabilities now existing against the said property, that then the said James W. Hanna and George W. Parker will pay or cause to be paid to the order of Lucinda Barker, William N. Byers and Joseph L. Bailey, or their executors or assigns, as follows, to wit: To Lucinda Barker, the sum of twenty-six hundred and seventy-seven dollars ($2,677); to William N. Byers, the sum of five hundred and eighty dollars ($580); to Joseph L. Bailey, the sum of seven hundred and forty-three dollars ($743).
    “ And it is further agreed that if the said sale is made or the compromise as aforesaid, that it shall be done within two (2) years, or if made thereafter that the said James W. Hanna and George W. Parker shall first obtain the consent of the said Anselm H. Barker, William N. Byers and Joseph L. Bailey thereto, and that without such consent that they will not make such sale.
    “ In witness whereof, we have hereunto set our hands and seals, at Denver,' Colorado, this 11th day of December, A. D. 1877.
    “ In case of a forfeiture of the within described property by said Hanna and Parker, they hereby agree to deed back to A. H. Barker, Wm. N. Byers and Joseph L. Bailey three hundred feet east from discovery on the Dean Lode Nos. 1, 2 and 3.
    “This interlineation was done on page first before signing.
    “Jas. W. Hanna, [seal.] [seal.]
    “State op Colorado, County of Arapahoe, ss.
    
    “I, William D. Todd, a notary public in and for the county of Arapahoe and state aforesaid, do hereby certify that James W. Hanna, personally known to me as the identical person whose name is subscribed to the foregoing instrument of writing, appeared before me this day in person and acknowledged that he signed, sealed and delivered the same as his free and voluntary act and deed for the uses and purposes therein set forth.
    “ The interlineation of the words on page one of, ‘ also Nos. 1, 2 and 3 east from discovery on the Dean lode in same mining district,’ made before signing.
    “Witness my hand and notarial seal this December 12, A. D. 18JY.
    “William D. Todd,
    [seal.] “ Notary Public.
    
    “ Which agreement was signed and acknowledged by said Hanna.
    “ Avers that Parker failed and neglected to sign the agreement with Hanna, but that he has always recognized the same as binding on his part, and has acted under the same, and availed himself of the terms and the benefits of the sale thereunder, and has ratified all that said Hanna has done in relation thereto, as herein stated.
    “Avers that said agreement has been fully performed by Barker, Byers and Bailey, as is therein confessed, they having relinquished all their right, title and interest in and to said property, as therein described, and, in all particulars, fully performed.
    
      “Avers that Hanna (appellee) and Parker have made-a sale and disposition of the property described in the-agreement, and that the title thereto has passed out of their hands; and that they have made a compromise with a party, or parties, who held a claim, or claims, incumbrance, or incumbrances, and have caused the property to be released from all claims existing therein; and that, they, or one of them, has held a title clear of all incumbrances existing on said property at the date of the agreement on or before December 9, 1879, whereby defendants, became liable to pay plaintiff the said sum of $2,670.; and that this sum is unpaid, except $50, paid December 15, 1877; and that defendants refuse, etc.
    “Demand for judgment for $2,670, and interest from December 1, 1879, and for costs.”
    The answer is adverted to in the opinion. The jury found a verdict in favor of the plaintiff in the sum of $3,149.49. Judgment was rendered on the verdict.
    Messrs. Benedict and Phelps, for appellant.
    Mr. L. O. Rockwell, for appellee.
   Beck, J.

It is assigned for error that the district court, erred in permitting the witness A. H. Barker to testify in the cause; and that it afterwards erred in denying a. motion to strike out his testimony.

The witness was the husband of the plaintiff below, Lucinda Barker. The contract sued upon provided that, in the event of one of three specified contingencies arising, a certain sum of money should be paid to the plaintiff. The witness A. H. Barker was permitted to testify on the theory that the litigation concerned the separate property of the wife, which made him a competent witness under ch. 104, General Laws 1877. In this view of the case the ruling was correct. Palmer v. Hanna, December term, 1881 (ante, p. 55).

As suggested by plaintiff’s counsel, if the litigation did not concern the separate property of the wife in that case it concerned the property of the husband, and in either case the witness was competent to testify.

The point made in argument, that this was a device between husband and wife to gain an additional witness, is without force. It is not assigned for error or claimed that the wife was a witness on the trial, and the record shows that she did not testify in the cause.

The second assignment of error was to the admission in evidence of the contract sued upon. This contract was set out in Iicbc verba in the complaint. The objections made to its introduction in evidence were, that upon its face it was executed by a part only of those who should have executed it; that its execution and delivery had not been proved, and no replication having been filed to defendant’s answer, it stood admitted by the pleadings that the contract was never completely executed, and never delivered as an executed contract.

The position assumed by plaintiff’s counsel is, that the allegations of the defendant’s answer were insufficient to put in issue the execution and delivery of the contract.

The substance of the answer upon this point is, that defendant says, on information and belief, that he did not make and enter into the agreement set forth in the complaint, but avers that he signed “an agreement similar to that set forth in said complaint,” which was never delivered as a completed agreement, but only to procure signatures of other parties thereto, which were never procured.

If this paragraph of the answer contains a material averment, it is the denial of the defendant that he made and entered into the agreement set out in the complaint. It is wholly immaterial to the case at bar what was done with the “ similar agreement.” Defendant’s counsel say that portion of the answer relating to this similar agreement was new matter, and not having been traversed by a replication, stands confessed as true, and presents a complete bar to tbe right to recover, being an admission that no contract was entered into. It is certainly new matter, but as pleaded it has no connection with the cause of action, and might have been stricken out on motion as irrelevant. Laws 1879, p. 215, § 1; Bliss on Code PI. § 423.

In respect to the averment of the defendant on information and belief, that he did not make and enter into the agreement, it is to be observed that this is an averment concerning a fact which is presumptively within the' defendant’s knowledge. The fact charged in the complaint was an act alleged to have been done by the defendant himself. Such facts cannot be denied on information and belief. Both the statute and the rules of pleading require the denial in such cases to be direct and positive. Code of Civil Procedure, sec. 57; Humphreys et al. v. McCall et al. 9 Cal. 59; Gas Company v. San Francisco, 9 Cal. 453; Bliss on Code Pl. sec. 326.

This portion of the answer was evasive; the remainder of the paragraph was irrelevant; the whole paragraph may therefore be disregarded. It is clearly insufficient upon its face, and does not tender a material issue.

It is assigned for error and strongly insisted upon, that the district court erred in permitting the witness Barker, against appellant’s objection, to answer questions in substance, whether or not the Dean and Casto lodes were one and the same lode.

Counsel say this was permitting the witness to give his opinion upon the issue which the jury was trying, instead of giving facts from which the jury could form its own opinion. They further say that no foundation w*as laid for this kind of testimony; that it was not expert testimony, nor was it a case calling for expert testimony.

A review of the testimony of this witness, as set out in the transcript of the record, shows that prior to the questions and answers, the admission of which is supposed to be so fatally erroneous, the witness had made the following statement of facts, substantially, to the jury: that he was one of the original discoverers of the Casto lode, he and a Mr. Hay man having discovered and taken it up in 1859. That the lode was opened about one thousand feet, and could be traced without difficulty. That the Dean lode branched out of the Casto at a certain point, and was a spur of that vein. That this same property was relocated in 1863 by Guy Hulett and Charles Post under the name of the Winnebago lode, their discovery being on the same one hundred feet claim as the discovery of the Casto.

The witness explained how these lodes were taken up in claims of one hundred feet each, and how the claims were numbered on all the lodes. He illustrated on his fingers to the jury how the Casto and Dean were situated or lay in relation to each other, and stated that claims 2 and 3 on the Dean lay opposite claims 2 and 3 on the Casto, and that the former were covered by the mill site.

He stated that Post and Hulett sold the Winnebago to the Albany Mining Company about a year after they took it up, and that witness had a contest with that company over the Casto and Winnebago in the year 1875 or 1876.

After the above statement of facts the witness was shown a certified copy of a deed from the Albany Mining Company to John R. Hanna, and after answering that he knew the property described therein, he was asked to state whether the Winnebago and Casto property described in the deed were the same property described in the contract sued upon.

The description of this property as given in the deed is: “All the mining claims Nos. 1, 2, 3 and 1 east,, on the Winnebago lode, with mill and mill site, two hundred and fifty feet square on claim No. 3, and discovery claim, and claims Nos. 1, 2 and 3 west, and Nos. 1 and 2 east, on the Casto lode.”

The witness answered thus: “ It corresponds with the property on the Casto as Nos. 1, 2 and 3, east of the discovery ; that far it corresponds with the Winnebago description; then they have one hundred feet more put into their record, which takes the discovery claim.”

In reply to further questions, the witness said the deed described one hundred feet more on the Casto lode than the contract did.

The contract sued upon was then introduced in evidence, after which the witness detailed the particulars of two conversations, had by him with the defendant, relating to the sale of the property by the defendant to the O. K. Mining Company, and the sum of. money due witness under the contract. He was then requested to state whether the Casto and Dean lodes mentioned in the contract were the same lodes he had been talking about in his testimony. ■ He said they were. Being shown the contract sued upon, and the description of the property as mentioned therein, he was asked what property it was. His answer was, “Nos. 1, 2 and 3, there, on the Casto, form the discovery, the same as Nos. 2, 3 and i on the Winnebago. It covers the identical property which is now the Winnebago, taking the discovery claim; it is on the west end, which we never numbered when we took np the property. We commenced at the edge óf the discovery claim, and they count in the discovery claim on the Winnebago as No. 1. We began from the edge of the discovery, making Nos. 1, 2 and 3 covering the east end of the Winnebago.”

The witness was also shown a deed from the defendant James W. Hanna to the O. K. Mining Company, describing, among other property conveyed therein, “ claims Nos. 1, 2, 3 and é east on the Winnebago lode, together with mill and mill site, two hundred and fifty feet square on claim No. 3, * * * together with all the dips, spurs and angles, and also all the metals, ores, gold and silver-bearing quartz, rock and earth therein,” etc.; and being interrogated as to what property the description covered, answered that it was the same property, explaining, as before, the difference in the mode adopted of numbering the claims on the Casto and Winnebago lodes.

He was then asked to state whether or not the property described in this deed from-the defendant to the O. K. Mining Company was the same property described in the instrument sued upon; to which he replied that it was the ¡same property.

The foregoing questions and answers cover that portion of the witness Barker’s testimony which counsel so strongly object to as having misled the jury and to be in violation of the rules of evidence.

We discover no errors in the admission of this testimony. Here was an instance where, according to the testimony on the part of the plaintiff, the same lode has been twice located under different names, and the claims thereon differently numbered in the two locations. One of the original locators, who had personal knowledge of .all the facts, detailed them to the jury, stating in the same connection that a spur or branch of the main vein departs from it at a certain point, and was named the Dean lode, describing its location and the situation of the claims thereon with reference to the main vein, and also with reference to a certain mill site. These are the statements of facts and not of opinions. And where certain written instruments were shown the witness, one describing the property according to the names of numbers given it by the first location, and the others by the names given by the second location, and some incorporating portions of both descriptions in the same instruments, the witness only applied these several descriptions to the subject matter when he said they all cover the same property. And considering the opportunity of testing the truth of this testimony by cross-examination, and by the introduction of other witnesses, it was not, in any view of the •question, necessarily prejudicial to the defendant.

Testimony of this character was held to be competent in Pipe v. Smith, 4 Col. 464.

The objection that the court permitted the witness to substitute his own opinion for the judgment of the jury is therefore not well taken. Such testimony is not mere opinion, but rather a conclusion of fact derived from observation and knowledge of the subject matter. True, it is not expert testimony, since it requires no special learning or experiment, but it is admissible on the same grounds as expert testimony, in the furtherance of justice. Commonwealth v. Sturtevant, 117 Mass. 132.

In the case of Steamboat Clipper v. Linus Logan, 18 Ohio, 375, the court says: “It is not true, as a legal proposition, that no one but an expert can give an opinion to a jury. From the necessity of the case, testimony must occasionally be a compound of fact and opinion.”

The foregoing are the only errors assigned upon the admission of evidence which we can notice under our rules, which require errors to be separately alleged and particularly specified.

It is urged that the motion for nonsuit should have been sustained on two grounds, other than those previously considered: First, because the plaintiff’s testimony did not warrant a verdict in her favor. Second, because the complaint did not state facts sufficient to constitute a cause of action.

It is only necessary to say, in answer to the first ground, that a careful examination of the evidence satisfies us of its sufficiency.

Referring to the second ground, counsel say: “The failure to aver a delivery of the agreement was fatal, and was good ground of nonsuit. * * * A delivery of the agreement was essential, and the averment of a delivery was equally essential.”

The averment in the complaint is: “The defendant made and entered into an agreement with the plaintiff,”' setting out a complete copy of the same.

Counsel argue that if it be said this averment covers a. delivery of the agreement, then it is still insufficient because it is not the allegation of a fact, but a conclusion of law, which is not pleadable.

This proposition is too refined. The same objection would apply to an allegation that the agreement was delivered, because, as Mr. Selden observes in Dows v. Hotchkiss (see Bliss on Code Pl. 208), the delivery may have been actual, or it may have been constructive merely, and what amounts to a delivery is a question of law.

Either averment, however, is that of an ultimate fact, which, although a conclusion of law from the evidence, is pleadable.

Mr. Bliss says in his work upon Code Pleadings, sec. 209: “The statement of a conclusion arising from facts under the law is not prohibited in any system; on the other hand, such conclusions are found in every pleading. But they are conclusions of fact — they are but logical inferences from probative or evidential facts.”

The ruling of this. court in Baker v. Cordwell (ante, p. 200), cited by defendant’s counsel, is not in point. That was an action to recover possession. of personal property. The complaint averred simply a right of possession, which was held bad on demurrer, on the ground that the action in such cáse is based on the assumption that the plaintiff has either a general or a special property in the goods sought to be recovered, as well as a right to their immediate possession. The mere averment of a right to their possession, therefore, was the statement of a legal conclusion; the ultimate fact from which this right flowed, viz., an ownership in the goods, general or special, not being alleged.

The ruling in the case of Higgins v. Bullock, 66 Ill. 39, is more analogous to the question raised in this case. It was assigned for error that there was no averment in the declaration that the note sued on was delivered to the plaintiff. The averment was: “And the said Alfred In-galls then and there indorsed the same to the plaintiff.” The court say: “We regard the allegation * * * as importing a complete indorsement by the delivery of the note to the plaintiff. It has been held that the averment, he ‘ made ’ the bill, when used in reference to the drawer ■of a bill of exchange, imported the delivery of the bill to the payee. Churchill v. Gardner, 7 T. R. 596. We see no reason why a like force should not be allowed to the term indorsed, in the present case.”

In view of the foregoing principles and authorities, we think the facts constituting the cause of action were sufficiently alleged in the complaint, and that no error was ■committed in denying the motion for nonsuit.

We discover no substantial error in the giving and refusing of instructions.

Upon a review of the entire evidence we find that it amply supports the verdict of the jury. The judgment is affirmed.

Affirmed.  