ordinary writing paper. The two cards and the receipt on paper were put in evidence by the plaintiff, and defendant now claims that the court committed error in admitting the two cards upon which the receipts were written. It is difficult to understand in what particular the defendant claims it was error Appeal from El Paso County Court; Rob- to admit these cards. She does not make her ert Kerr, Judge. Action by Louise Schneider against Elma M. Gill. From a judgment for plaintiff, defendant appeals. Affirmed. reasons for the alleged error plain. The objection made below went to the three receipts, seemingly because of the printed matter on the back of the two cards. The three John W. Kriger and W. M. Swift, for ap- receipts would have been excluded had the pellant. John M. Johnson, for appellee. MUSSER, J. This action was commenced - before a justice of the peace and taken on appeal to the county court. There are no written pleadings. From the evidence, it appears that the action is to recover damages for an alleged breach of contract. The plaintiff was afflicted with tumors, and the evidence on her behalf showed that the defendant guaranteed to remove those tumors in three months, by means of her particular mode of treatment. The plaintiff was to pay the defendant $50 for the first month's treatments and $40 for each of the other two months; the payments to be made monthly in advance. The plaintiff made these payments as required, in all $130. The plaintiff claimed that the treatments did not remove the tumors, or relieve them, and that she had to have them removed by an operation performed by a regular physician. Plaintiff also claimed that, besides paying out the $130, she was otherwise damaged by loss of time in her occupation as a cook, in consequence of the failure of the defendant to perform her contract. The first contention of the defendant is that the court erred in denying her motion to require the plaintiff to elect whether she sought to recover for breach of contract or for fraud. No such motion appears in the printed abstract. Furthermore, there was no basis for such a motion in the case. At the time arrangements were first made for treatments, the plaintiff received from the defendant a receipt for the first month's compensation, written on the reverse side of one of defendant's printed business cards. The card and the receipt on the reverse side were as follows: Elma M. Gill The Electro Biologist Can cure any and all chronic diseases, also remove cancers and tumors without operation or drugs. 217 S. 4th Street. West Colorado Springs. Received from Mrs. Schneider $50.00, being payments in full for one month's treatments, dating from Sept. 22nd. Elma M. Gill. The receipt for the payment for the second month's treatments was written on the reverse side of a similar card. The receipt for the third month's treatments was written on objection been sustained as made. The reIceipts were certainly admissible in evidence as tending to prove the payment of the consideration to the defendant. The plaintiff's testimony tended to show that the agreement was, not that the defendant would treat the plaintiff for the tumors, but that the defendant would, in three months, remove the tumors. It will be noticed that the matter on the cards did not, in any manner, qualify or limit the ability of the defendant to perform those things which the card said she could do, and for this reason, if for no other, the printed matter was admissible in evidence for what it was worth, as tending to corroborate the claim of plaintiff. In two of the instructions, the jury were told by the court that, if they found certain facts, their verdict should be for the plaintiff. The defendant says that the court committed error in prefacing the instructions by the words, "if you find," instead of "if you find from the evidence," and calls attention to several decisions in this court where the instructions were prefaced by the words, "if you believe," instead of "if you believe from the evidence." To avoid contention, it will be assumed with the defendant, for the purpose of this case, that the words "if you find" have the same import and leave the same impression as the words "if you believe." In Salomon v. Webster, 4 Colo. 353, it is said that an instruction prefaced by the words "if you believe," without adding "from the evidence," is objectionable, "and, in a case where the evidence is quite evenly balanced, might be a ground of reversal." In Ingols v. Plimpton, 10 Colo. 535, 539, 16 Pac. 155, 156, it was said that an instruction beginning "if you believe," without adding the words "from the evidence," was faulty, if standing alone. In Gorman v. People, 17 Colo. 596, 31 Pac. 335, 31 Am. St. Rep. 350, it was said of such an instruction: "It is doubtful, however, if this judgment should be reversed solely on account of such an omission in the charge. Jurors generally understand that they are to decide all cases solely upon the evidence introduced at the trial. In every case the oath administered to them calls for a determination of the issues upon the evidence, and in the absence of a showing to the contrary it is to be presumed have been given. The matter of evidence cannot be gone into for the reason that the evidence appearing in the abstract is conflicting, and further it appears from the abstract itself that much of the evidence has been omitted. There is no reason why this judgment should be reversed. It is therefore affirmed. Judgment affirmed. STEELE, C. J., and BAILEY, J., concur. (48 Colo. 411) McPHAIL v. DELANEY, Chief of Police. NEYS WITH PRISONERS-REFUSAL TO ALLOW Mills' Ann. St. § 210, provides as to officers or others having any person in custody that they shall admit an attorney whom such person may desire to see or consult, and that any officer violating such provision shall forfeit and pay a certain sum to the "person aggrieved" to be recovered by action. Held to give a right of action only to the person in custody, and not to the attorney as the "person aggrieved." [Ed. Note. For other cases, see Prisons, Dec. Dig. § 10.* For other definitions, see Words and Phrases, vol. 1, pp. 271-273; vol. 8, p. 7569.] Error to District Court, City and County of Action by Duncan McPhail against Michael that they have acted in accordance with this oath." In this case the instructions objected to do not stand alone. In addition to the oath administered to the jury in which they were told to determine the issues upon the evidence, the court, in one instruction, told the jury that they must believe from a preponderance of the evidence all the facts (reciting them) upon which the plaintiff could recover, before they could award her damages, and if they did not so believe from the preponderance of the evidence, she could not recover, and in another instruction the court told the jury that the burden of proof was upon plaintiff to sustain the issues by a preponderance of the evidence for the amount which she claims, and unless they believed from a preponderance of the evidence that the plaintiff had sustained damages as stated in her proof, they must find for the defendant. The jury certainly understood from these instructions that they must find the facts from a preponderance of the evidence. In instruction No. 5, the court instructed the jury that when a person sends out business cards, stating their ability to do and perform certain things, the law holds them to an accountability to perform those things. The defendant objects to this instruction because it is not based on any evidence, and for no other reason. There was evidence concerning the business cards of the defendant, shown in the abstract. The first receipt given to the plaintiff, at the time the contract was made, was written on one of these business cards, and so was the second receipt. There was also other evidence about the business cards shown in the abstract. Besides all this, a great deal of the evidence is omitted from the abstract as plainly appears therefrom. If parties desire an objection to an instruction, to be considered because it is not based on evidence, it should at least appear in the abstract that evidence omitted does not relate to the matter covered by the instruction. Ten instructions were requested by the defendant and refused by the court. In excepting to the refusal to give these instructions, the exceptions were not made separately to the refusal of each of the instructions as requested, but the exception was to the refusal of the court to give the requested instructions as a whole. The matter contained in some of the instructions requested was sufficiently covered by the instructions given. Some of the requested instructions were clearly wrong. Under Counting on this section for a cause of acsuch circumstances, the court did not err in tion, plaintiff, a practicing attorney, brought refusing to give the requested instructions suit against Michael Delaney, then chief of as a whole. Notwithstanding this state of police of the city of Denver, averring the latthe exceptions, the instructions requested ter's refusal to allow him to see and consult have all been carefully examined. The mat- one Sernado Callanan, then held in custody ter contained therein, which should have by Delaney, as such official, it being also albeen given to the jury, was sufficiently cover-leged that the prisoner had retained McPhail ed by the instructions given, and the matter as her attorney, that she then and there denot in the instructions given ought not to sired to see and consult him, and that there *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Duncan McPhail, in pro. per. H. A. Lindsley and F. W. Sanborn, for defendant in error. BAILEY, J. Section 210, Mills' Ann. St., provides as follows: "All public officers, sheriffs, coroners, jailers, constables, or other officers or persons, having in custody any person committed, imprisoned, or restrained of his liberty, for any alleged cause whatever, shall, except in cases of immediate danger of escape, admit any practicing attorney at law in this state whom such person restrained of his liberty may desire to see or consult, to see and consult such person so imprisoned, alone and in private, at the jail or other place of custody; any officer violating this provision shall forfeit and pay one hundred dollars to the person aggrieved, to be recovered by action of debt in any court of competent jurisdiction." does not undertake to furnish him protection. Whatever relief, if any, he may be entitled to, cannot be secured by action under the statute, since it does not purport to provide him a remedy. To entitle the plaintiff to the relief here sought the provisions of the statute should be clear and plain to that effect, while, as matter of fact, the exact contrary is true. The judgment of the trial court in dismissing the action was right, and is affirmed. Judgment affirmed. was no immediate danger of escape, should | which he is justly entitled, but this statute such permission be given and such consultation be had. Upon trial to the court the issues were found generally against the plaintiff and in favor of the defendant, which general finding covers the question as to wheth er, under the statute, the attorney is the person aggrieved. The court below found that the right of action is given only to the person in custody, and not to the attorney, and at the close of plaintiff's testimony, on motion, for that reason, dismissed the case. review that finding and judgment plaintiff brings the case here on error. To STEELE, C. J., and WHITE, J., concur. (48 Colo. 373) DONLEY v. BAILEY. Offers made during negotiations looking toward a compromise and made for the purpose of avoiding litigation are inadmissible. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 745-751; Dec. Dig. § 213.*] 2. EVIDENCE (§ 261*)-ADMISSION OF LIABILITY-DETERMINATION. We determine the single question as to who is, under the statute, the person aggrieved. The statute reads the person aggrieved. It is in the singular, not persons. It employs the definite article; neither does it say any person aggrieved, it says the person, that is, but one person has a cause of action. It fol-1. lows that, arising out of a single violation of the statute, there can be but one cause of action and but one recovery. There is but one aggrieved person, either the attorney or the prisoner. If the attorney may recover the one in custody cannot, and if the latter may the attorney cannot. This being manifest, it only remains to determine to which one is given the right of action. In other words, in whose interest and for whose benefit and protection was the statutory cause of action created, for that is all it is. The words of the statute directly refer to the prisoner, as being the one to whom, if his wish to see and consult an attorney is denied, a right of action is given. That is, where one in custody, charged with a criminal offense, having a desire to see and consult an attorney, there being no immediate danger of escape if such interview be permitted, is refused that right, a statutory cause of action arises in his favor against an officer who, by such refusal, violates an express provision of the law. re The statute is plainly intended for the exclusive protection and benefit of the prisoner. The object is to give the individual strained of his liberty the opportunity to see and consult an attorney, to determine whether he is unlawfully imprisoned, and to prepare for and properly make defense against whatever charge is preferred. Under our Constitution and laws, the accused has the right to have the advice and assistance of counsel in defense, to know the accusation made, and to have a speedy trial. Manifestly this statute was intended, in a measure at least, to preserve to the accused these rights and protect him in them. The one denied rights of such paramount importance must of necessity be the person aggrieved. The statute cannot well be held to refer to any other. In determining whether evidence of admission of liability is inadmissible because an offer of compromise, there is a preliminary question of fact either for the court, or, under certain circumstances, for the jury, whether or not the offer to pay an amount in settlement of the claim was an admission of real or absolute liability, or made merely by way of compromise to avoid litigation, or to otherwise purchase peace, without intending to admit any real liability. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1013-1018; Dec. Dig. § 261.*] 3. APPEAL AND ERROR (§ 992*) - REVIEW PRELIMINARY QUESTIONS OF FACT. A finding of fact, whether the admission of liability was made as an offer of compromise, or as an absolute admission of liability in deteragainst the evidence, is error, the same as the mining the admissibility of the admission, if finding of any other material fact would be error, when against the evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3850; Dec. Dig. § 992.*] 4. EVIDENCE ($ 256*)-ADMISSION-DETERMINATION OF ADMISSIBILITY. liability to his broker for commissions, evidence On the issue whether a principal admitted held sufficient to support a finding that it was the admission of an absolute liability, and not merely an offer of compromise to avoid litigation, or to purchase peace, and hence was admissible as an admission. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1003, 1005; Dec. Dig. § 256.*] 5. APPEAL AND ERROR (§ 992*)-REVIEWCONFLICTING EVIDENCE-DETERMINATION OF ADMISSIBILITY. Where the evidence is merely in conflict on an issue whether an admission of liability by a principal to his broker for commissions was an absolute admission, or an offer of compromise to avoid litigation or to purchase peace, the will not be disturbed. finding of the court in admitting the evidence [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3850; Dec. Dig. § 992.*] It may be that plaintiff, in his capacity as an attorney, has been, by the conduct of the defendant, deprived of certain privileges to •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Though the court determined the admissibility of an admission of liability by a principal to his broker for commissions, without submitting the question to the jury, it is not error, where no instruction was requested to that effect; since a mere nondirection is not error. 6. TRIAL (8 255*) - NECESSITY FOR REQUEST | defendant admitted that he entered into a FOR INSTRUCTIONS. contract to pay the plaintiff $500 to procure a purchaser for the said premises, but denied that he ever entered into any contract to pay him any sum for procuring a lessee. The jury returned a verdict for plaintiff in the sum of $542, and from a judgment upon this verdict, the defendant appealed. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*] 7. BROKERS (§ 8*)-COMMISSIONS EVIDENCE. On an issue whether a principal contracted with a broker for compensation for finding a lessee for the property, as well as a purchaser, testimony on the part of the principal to rebut the testimony of the broker that such was the fact, that he had another offer from another party to take a lease and had refused to consider it, because he wanted to sell the property and not lease it, is irrelevant, where the offer was made after the contract was entered into. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. § 8.*1 8. INTEREST (§ 31*) - RATE CLAIM BY BROKER. "ACCOUNT". Under Rev. St. 1908, § 3162, providing that creditors shall be allowed to receive interest, when there is no agreement as to the rate thereof, at the rate of 8 per cent. per annum on money due on "account" from the date when the same became due, the claim of a broker of a contract sum for finding a lessee of property is within the term "account," and the broker is entitled to interest at the rate of 8 per cent. [Ed. Note. For other cases, see Interest, Cent. Dig. §§ 64-67; Dec. Dig. § 31.*] 9. WORDS AND PHRASES "ACCOUNT." The word "account" has various meanings, and is used in a variety of ways and senses; an account arises out of contract or some fiduciary relation; its ordinary commercial usage is to refer to a claim or demand growing out of the sale of goods, performance of services, and the like; when used alone, without words of limitation, extension, qualification, or explanation, it is sometimes equivalent to the word "claim" or "demand," when referring to an indebtedness arising out of contract or some fiduciary relation. [Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 86-91; vol. 8, p. 7561.] Appeal from District Court, Boulder County; James E. Garrigues, Judge. Action by Joseph R. Bailey against Joseph Donley. From a judgment for plaintiff, defendant appeals. Affirmed. O. A. Johnson (C. A. Prentice, of counsel), for appellant. Norton Montgomery, Elizabeth M. Brown, and H. Wendell Stephens, for appellee. MUSSER, J. This action was brought to recover a commission of $500 and interest thereon, alleged to have been earned by the plaintiff in procuring a lessee for coal lands of the defendant upon terms satisfactory to the latter. The complaint alleged that the defendant agreed to pay the plaintiff $500 if the plaintiff would procure a purchaser for the property, or one who would enter into a lease thereof satisfactory to the defendant, and that the plaintiff did procure for the defendant a prospective buyer or lessee for the coal lands, with whom the defendant entered into a satisfactory lease. In his answer, the The first assignment of error discussed by the appellant relates to the admission of certain testimony, which, it is claimed, was inadmissible because it was an offer of compromise on the part of the defendant. A Mr. Linkletter had seen the defendant on behalf of the plaintiff, and afterwards there was a meeting in Mr. Linkletter's office. With reference to this meeting, the plaintiff testified: "Mr. Linkletter was present and Mr. Donley says, 'I came up to see if we could fix up our matter.' And I says, 'All right, Joe, I have written out an order for $100 payments. commencing on the 15th of February and payable in five months, at $100 a month, which order would be accepted by the BrooksHarrison Fuel Company; that is, Mr. Brooks.' And Donley says, 'Is Ed Coats in this deal?' I says, 'No, sir; Ed Coats is not in this deal; this is our own deal, mine and yours.' Don ley says, 'Well, it is too much; I will give you $250.'" It is to this last testimony, relative to the offer to pay $250, that the appellant specifically objects in his brief, because, as he says, it was an offer to compromise. It has been decided several times in this state that offers made during negotiations, looking toward a compromise, and made only for the purpose of avoiding litigation, are inadmissible. Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985; C. B. & Q. Ry. Co. v. Roberts, 26 Colo. 329, 57 Pac. 1076; Thomas v. Carey, 26 Colo. 485, 58 Pac. 1093. In the case of Patrick v. Crowe, the offer was made by way of compromise to avoid litigation, and it was said that if either party, in the course of negotiations, admitted any independent fact, such admission, if material, might be proper evidence against the party making it, or as elsewhere expressed, the admission of liability is receivable in evidence, even if made during the course of an attempt to compromise. In the Roberts Case, the court specifically found that the letter admitted, when read in the light of the circumstances of the case, was an offer made by way of compromise to avoid expense and litigation, and was not an acknowledgment of liability. In the Carey Case, it is again specifically found that the offer did not amount to an admission of liability upon either of the items sued upon. Hence, an admission of actual liability, even during negotiations for a compromise, or an offer of payment which admits actual liability, is not within the rule of exclusion announced in those decisions. This matter can be best illustrated by quotations from other authorities. In Hartford *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Bridge Co. v. Granger, 4 Conn. 142, 148, it is * without intending to admit any real liability. If the former, it is admissible; if the latter, not admissible. The question involved is one of fact, to be determined by the court or by a jury, under certain circumstances. Colburn v. Groton, supra. The finding of fact, in such a case, if against the evidence, is error, the same as the finding of any other material fact would be error when against the evidence. In the decisions cited from our own court, the offers of payment therein referred to were clearly made, merely by way of compromise to purchase peace without admitting real liability, and hence the lower courts, in finding that the offers were admissible, committed error. In determining this preliminary question of fact, the intent of the party must be sought. In the Roberts Case, supra, our court resorted to the circumstances of the case and read the letter which had been admitted in the light of those circumstances. Indeed, as is seen from the above quotations from the opinions of other courts, the time when, and the circumstances under which, the offers of payment were made may be resorted to for the purpose of determining the intent of the party making it. The or Let resort be had to the time and circumstances of the offer in the present case. Prior to the meeting in Mr. Linkletter's office, Mr. Linkletter had seen the defendant on behalf of the plaintiff, and with reference to this, testified: "I went to Denver at the request of Mr. Bailey to see Mr. Donley and to get an order from Mr. Donley to the BrooksHarrison Fuel Company for $500. ders were made out. Mr. Donley said he did not owe Mr. Bailey $500, but that he did owe him $250. He would pay him no more, for the reason that Mr. Coats claimed $250, and he wasn't going to pay both." Here is a direct and unqualified admission, by the defendant, of actual liability. A few days after this, Mr. Linkletter and the plaintiff and the defendant met, and at that meeting, the offer to pay $250, which is objected to as evidence, was made. The defendant said, "Well it is too much; I will give you $250." In the light of the admission of liability, he had made a few days before, it is not unlikely that the defendant meant the same thing at this meeting. He did not deny any liability. He said that $500 was too much, fairly im The question to be considered is, what was the view and intention of the party in making the admission; whether it was to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist." In Colburn v. Groton, 66 N. H. 151-156, 28 Atl. 95, 97, 98 (22 L. R. A. 763), it is said: "The preliminary question always is, not merely whether an admission of a fact was made during a settlement or negotiation, but whether a statement or act was intended to be an admission. It is a question, not of time or circumstances, but of intention. On that question the time and circumstances may be material evidence. An offer of payment, whether accepted or rejected, is evidence, when the party making it understood it to be, and made it as, an admission of his liability. It is not evidence when he made it for the purpose of averting litigation, not intending to admit his liability." In Pentz v. Penn. Fire Ins. Co., 92 Md. 444, 48 Atl. 139, it was said: "He was then asked what offer of settlement he had made, and the court upon the objection of the defendant excluded the question. The word 'settlement,' as ordinarily used, may mean a compromise for peace' sake of a claim, the validity of which is denied, or it may signify the payment of a claim to the extent to which it is conceded to be due. If the witness in the present case, by the use of the expression 'settlement,' meant a compromise in the strict sense of a claim under the policy, although no loss was admitted, evidence of the compromise was not admissible. If, on the contrary, he meant, as his previous answers seem to indicate that he did, that there was a conceded loss under the policy which he wished to settle, the dispute being merely as to the amount of the loss, the evidence, was admissible * * * as sufficient evidence to go to the court, sit-plying that he did owe the plaintiff someting as a jury, from which he might infer that the refusal to pay a greater amount of loss was upon other grounds than failure to furnish proof of loss, and that therefore there had been a waiver by the defendant of such proof." Thus it appears that before the admissibil-ant anything. In fact, nowhere in the record, ity of the evidence offered can be determined, a preliminary inquiry must be made as to whether or not the offer to pay an amount in settlement of a claim contained, or was an admission of real or absolute liability, or made merely by way of compromise to avoid thing, especially in the light of his previous admission. Elsewhere in the testimony of plaintiff, it appears that the defendant requested another party to see the plaintiff and settle with him for $250, but he did not claim to this party that he did not owe the defend so far as the evidence on behalf of the plaintiff is concerned, does it appear that the defendant ever denied liability, or that he ever, expressly or impliedly, put his desire to pay $250 upon the ground that while he did not owe anything, he was willing to pay that sum |