employed in his behalf, involves an absurdity no one would countenance. It would create a penalty from which few could escape; for every man is, or ought to be, directly or indirectly, nearly or remotely, engaged in the service, or on behalf, of his fellow-men. But, from an examination and comparison of the adjudged cases, the rule now seems very clearly to be this: that where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction, or supervision of the employer, the latter is not responsible for the negligence or misdoings of the former." So, in the case of Gulzoni v. Tyler, in 64 Cal. 334, which was a suit for damages against the owners of a steam-boat, it was proven on the trial that the owners did not have control and management of the boat at the time the damages occurred. The court says: "The rule as stated by Shear. & R. Neg. § 501, is that if the owner of property lets or lends it, and transfers the entire possession and control of it to another, the owner is not responsible for the wrongful use or mismanagement of it by the transferee. Whoever had the exclusive possession, management, and control of the boat, its officers and men, was alone responsible for its mismanagement; and, whether rightfully or wrongfully in such possession, the liability would rest on them alone. Under the rule, respondeat superior, this must be so." The act of the servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or subsequently adopts it. Parsons v. Winchell, 5 Cush. 592. was cash, for so I will count it. The account sales must be at $4.00 per keg, and I need your receipt for the commission of 10 per cent. You are duly credited with account for $16.85. Respectfully, WM. A. SCOTT, Agent." The above bill and letter, together with the oral evidence introduced on the trial, clearly show that Neff & Stevens were handling this powder as factors, commission merchants, or consignees. There is no evidence in any way limiting their power as such, or directing the manner of handling it. As factors, under the law, they would have full possession of the goods, with a special property therein. Story, Ag. § 97. The court instructed the jury: "If they should find that said black powder was kept and maintained by the defendant or their agents at the time, etc." The word "agent," in the instruction, must be understood in the sense in which it appears from the evidence; and, if instruction No. 6, which was asked by the defendant, and refused by the court, had been given, the issues would have been fairly presented to the jury; which instruction was: "If you believe from the evidence that the defendant corporations each owned a portion of the powder stored in the powder-house at the time of the explosion, but that such powder and powder-house was under exclusive control of Neff & Stevens, as consignees of said corporations, respectively, at the time of the explosion, then, in that case, unless you further believe from the evidence that such explosion was caused by some willful and malicious act of defendant the California Powder Company, you will find the defendant not guilty." The first part of this instruction would have brought the case under the rule laid down by the authorities we have referred to, and which is unquestionably the correct law, as applicable to this case. The evidence does not show anything upon which the doctrine of respondeat superior could be based. So far as the evidence shows, the relationship of Neff & Stevens to the defendant was that of an independent employment, free of action. There is a total lack of all the elements of master and servant, which must exist to constitute responsibility on the part of the defendant. We think the court should have given the first part of this instruction, or instructed the jury in accordance with the views herein expressed. The case will be reversed, and remanded for a new trial. In order to clearly understand the application of the foregoing principle to this case, it may be well to refer more particularly to the evidence as to the relationship as proven. Gould, an agent of the California Powder Company, in 1884 called upon Neff & Stevens, requesting them to take the agency of the company, which they declined, for the reason that they had a large amount of powder of the other company on hand. They desired a certain amount of black powder, which they were short of, which he agreed to have sent them; and it was sent, and billed as follows: "Tucson, Arizona, November 11th, 1884. Messrs. Neff & Stevens, Silver City: Bot. of the California Works, 30 California Street. Consigned, 80 kegs biasting, 4.00, $320.00." It is contended on the part of the plaintiff that this powder was sent as a consignment, to be sold on commission, as other powder belonging to the defendant that had been turned over to them by Cohn, assignee of McCLURE et al. (SCHERRER, Intervenor,) Crawford. The defendant claims that these 80 kegs was an absolute sale. There was also a letter from William A. Scott, agent at Tucson, Ariz., dated March 13, 1885, which is as follows: "Messrs. Neff & Stevens, Silver City, N. M.-Gentlemen: Your favor of the 10th inst. is at hand. Please to send account sales at $4.00 per keg, and send draft on me for 10 per cent. of the amount of the same, as if the draft WHITEMAN and McFIE, JJ., concur. v. SMITH. SAME v. CLOUGH. (14 Colo. 297) 2. When it appears that an attachment notice is correct, it is not error, on application supported by affidavits and notice to opposing counsel, to allow the sheriff to amend his return by correcting a misdescription of the realty attached. Appeal from district court, Arapahoe county; ELLIOTT, Judge. Suits were brought by Smith and Clough against Charles B. and H. C. McClure to recover claims for goods sold and delivered. Attachments were issued in these suits, and levied upon certain real estate in the city of Denver. This real estate appears of record in the name of Scherrer, and Scherrer duly filed a plea of intervention in each of the suits, claiming a superior right as against the attaching creditors. He averred in these pleas that, although the deed from the McClures to himself to the premises was absolute in form, yet it was intended, together with a certain defeasance in writing executed at the same time, to constitute a mortgage securing a large existing, and also a contingent, indebtedness. The causes were consolidated and tried to the court upon the pleas of intervention, answers thereto, replications, and evidence offered. The court made specific findings of fact and of law, upon which was predicated a decree in favor of the attaching creditors and against the intervenor. To review this decree the present appeal was taken. Bennett & Bennett, for appellants. & Carpenter, for appellees. Perry finding the decree in favor of the attaching creditors was based, and upon its correctness or incorrectness the affirmance or reversal thereof must rest. It is obvious that the court below adopted the view that a deed absolute in form, but in reality designed to operate as a mortgage only, is constructively fraudulent, and consequently void in law, as to other existing creditors of the mortgagor, even though the transaction contain no element of fraud in fact. This position of the trial judge is supported by well-considered decisions. Friedley v. Hamilton, 17 Serg. & R. 70; Manufacturers', etc., Bank v. Bank of Pennsylvania, 7 Watts & S. 335; Smyth v. Carlisle, 16 N. H. 464; Bryant v. Young, 21 Ala. 264; North v. Belden, 13 Conn. 376. But in our judgment the weight of authority favors the view heretofore announced by this court. It was held in Ross v. Duggan, 5 Colo. 85, that, while this method of creating an incumbrance is a conspicuous badge of fraud as to existing creditors, it is not conclusive, and that the bona fides of the transaction may be shown by collateral proofs. It is true that when the mortgagee consents to take an absolute deed, even though, as in the case at bar, he delivers back a defeasance, he makes it possible for the mortgagor to deceive his other creditors. For this reason, such a proceeding is regarded with disfavor, and upheld with reluctance. It would no doubt be wiser, as well as less harmful, if the mortgagee insisted upon having the transaction evidenced by an ordinary mortgage. But, if there be a bona fide debt for which the se HELM, C. J. The present appeal was taken under the act of 1885. No evidence is embraced in the abstract, and therefore a review upon the evidence could not be had. Thecurity is given; if there be no understanding findings of fact, however, of the court below are properly before us, and, since they are not in any way questioned, will be accepted as conclusive. By the record as presented, we are advised of the following facts: That McClure Bros., being indebted to Scherrer to a large amount, executed an absolute deed conveying the realty in question to him; that in connection with the giving of this deed, and as a part of the same transaction, Scherrer executed in writing, and delivered to McClure Bros., a defeasance; that the two instruments were designed by the parties to constitute, and did constitute, a mortgage of the premises as security for the indebtedness to Scherrer; that the whole transaction, so far as Scherrer was concerned, was characterized by entire good faith in fact; that, immediately upon the execution of these instruments, Scherrer took, and has since retained, possession of the mortgaged realty; but that, while the absolute deed to Scherrer was duly filed for record with the clerk, and recorded prior to levy of the writs of attachment, McClure Bros. failed to record their defeasance. Notwithstanding the foregoing conclusions of fact, however, the court found that as to Smith and Clough, the attaching creditors of McCure Bros., the transaction constituted a constructive fraud, and the deed to Scherrer was void in law. On this with the mortgagee to hold the overplus, or to hold the property after payment of his debt, secretly, for the benefit of the mortgagor; if there be no collusion on the part of the mortgagee with the mortgagor in keeping the defeasance unrecorded, or in keeping secret the exact nature of the transaction, for the purpose of deceiving creditors; in short, if the mortgagee is simply endeavoring, in good faith, to obtain that precedence in the security of his debt which the law permits, the mere isolated fact that he takes an absolute deed, instead of a mortgage, will not, in and of itself alone, render his lien nugatory. The law prescribes no absolute and inflexible form for mortgages upon realty. It certainly assumes that such instruments as the one under consideration will sometimes be employed. Section 261, Civil Code 1887, provides that "the fact of a deed being a mortgage, in effect, may be proved by oral testimony." While this section would not be permitted to affect the title of a bona fide purchaser from the mortgagee, for good consideration, without notice, we conceive it to be broad enough to permit the proof mentioned as between the parties, and as against the claims of other creditors. The view that fraud per se should not be imputed to such transactions as the one under consideration receives countenance from section 1529 of the General Statutes. This section declares that the question of fraudulent intent, in all cases relating to the conveyance or assignment of any estate or interest in lands, shall be a question of fact, and not of law. Ross v. Duggan, supra; Bump, Fraud. Conv. 40; Gaffney's Assignee v. Signaigo, 1 Dill. 158: Harrison v. Trustees, 12 Mass. 455; Gibson v. Seymour, 4 Vt. 518; Stevens v. Hinckley, 43 Me. 440; Chickering v. Hatch, 3 Sum. 474; Bank v. Jacobs, 10 Mich. 349. Since neither the case of Ross v. Duggan, in 5 Colo., nor the other cases supra, are mentioned by the briefs filed in this court, we are justified in assuming that the attention of the presiding judge was not directed there to. Had he been advised of these authorities, especially of Ross v. Duggan, his decree would, doubtless, have been different. In view of a retrial of the cause, we deem it important to notice briefly the remaining question argued on the present appeal. The return of the officer who levied the writ of attachment was slightly defective in its description of the realty attached. There is nothing, however, in the record before us to show that the attachment notice filed with the clerk and recorder partook of the same infirmity. The court, prior to the trial, upon application supported by affidavits, notice having been given to opposing counsel, and upon careful consideration, permitted the sheriff to amend his return by correcting therein the misdescription in question. This was not error. Amendments of the officer's return upon process to correspond with the fact are in the iterest of justice; and, unless it be shown that the party complaining has been deceived or misled to his prejudice, great liberality in allowing them is always exercised. Anderson v. Sloan, 1 Colo. 33; Loveland v. Sears, Id. 433; Paper Co. v. Clark, 3 Colo. 321; Crock. Sher. § 43; Corby v. Burns, 36 Mo. 194. The judgment is reversed, and the cause remanded for a few trial. ELLIOTT, J. I concur in the foregoing opinion. The chief justice is quite right in supposing that the case of Ross v. Duggan was not cited at nisi prius. I did not have the opinion in that case in mind at the trial, or I should gladly have followed it, instead of the Pennsylvania cases then referred to. This case serves to emphasize what was said in Crane v. Farmer, ante, 455, about the importance of giving attention to our own Reports. (14 Colo. 391) STATE INS. Co. v. HORNER. (Supreme Court of Colorado. March 28, 1890.) INSURANCE TERMINATION-CONSTRUCTION. 1. In a provision in a policy that the "insurance may be terminated, at the request of the insured, by repaying the company the customary short rates from the date of this policy, together with the expenses of writing the risk, "the "customary short rates" do not include "the expenses of writing the risk." 2. In such a policy "the expenses of writing the risk" includes the commission paid by the company to its agent. Error to circuit court, Arapahoe county. W. J. Weeber and Rogers & McCord, for plaintiff in error. John W. Horner, pro se, and P. L. Palmer, for defendant in error. HELM, C. J. The insurance policy issued by plaintiff in error to defendant in error contained the following provision: "This insurance may be terminated, at the request of the insured, by repaying the company the customary short rates from the date of this policy, together with the expenses of writing the risk." Upon the construction of this provision rests the present decision. Contracts of insurance, like other contracts, are to be interpreted according to the language employed by the parties. Neither the understanding of the insurer or insured, nor custom or usage inconsistent therewith, can be substituted for the provisions of the written policy. Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207; Sperry v. Insurance Co., 26 Fed. Rep. 234: May, Ins. § 172; Wood, Ins. § 57. It is hardly necessary to add that courts of equity will relieve against such contracts where fraud or deception supervenes, and that substantial ambiguity therein may be explained as in other cases. The clause above quoted clearly provided that, upon the termination of the policy within the period named therein, the company should be repaid two specific amounts, viz.: First, the "customary short rates" from the date of the contract; and, second, the "expenses of writing the risk." In this respect the provision is too plain to admit of serious controversy. If the expression "the customary short rates" includes the expenses referred to, why are those expenses mentioned? Reference thereto is wholly superfluous, and can only serve to mislead. The two expressions may each possess a peculiar technical significance, and testimony may be necessary to explain their meaning; but that they refer to different things, and that the former does not include the latter, and was not intended to do so, are propositions placed by the contracting parties themselves outside the province of construction. The jury may determine upon the evidence produced what is meant by and included within each of these expressions, but we do not consent to the idea that the question whether one embraces the other is a proper subject for their consideration. It may be true that the "customary short rate" itself includes the expenses of writing a correspondingly short risk, when such risk is taken in the first instance; but, if the assured elects to secure the benefit of a long-time and lowrate policy, and agrees that, in case he invokes the privilege of canceling his contract, he will pay, in addition to the customary short rate, the expenses of writing the long risk, we cannot say that his agreement is so unreasonable or unjust as to warrant his release from performance upon exercising the mission paid by the company to its agent is included. Some of these witnesses stated that they were not familiar with the provision under consideration. It does not seem to be universally incorporated in insurance policies, though its presence is not uncommon. This undoubtedly accounts for some of the discrepancies between the witnesses, and also for some of the seeming inconsistencies in the testimony of the same witness. Upon a retrial of the case, most if not all of these discrepancies and inconsistencies will probably disappear; and, if our conclusion, based upon the testimony now before us, that a repayment to the company of the commission paid its agent was within the purview of the contract, be wrong, such error will doubtless be made to appear. option in question. We shall assume, therefore, that the assured, upon cancellation of the policy, was to pay the "expenses of writ ing the risk," in addition to the "customary short rate.' What are "the expenses of writing the risk?" What is the meaning of this expression, as it is generally understood among insurance people? Does it include commissions paid to the agent for procuring the risk? An answer to the third and last of the foregoing interrogatories will be decisive of the present controversy, because it embraces the only item of difference between the parties. It is contended by defendant in error that the phrase "writing the risk" is synonymous in meaning with the phrase "writing the policy;" that the expense of writing a policy is the one-dollar fee paid the agent for his clerical labor in preparing the It may be that, as claimed by defendant in instrument; and, therefore, that the one-dolerror, the foregoing view will, in individual lar fee constitutes the entire expenses of cases, result in surprise and injury to the aswriting the risk, and the agent's commission sured; but our answer to this assertion, if it is no part thereof. The fee of one dollar for rest upon a truthful basis, is that reasonable writing the policy is always paid to and re- examination and inquiry before entering into tained by the agent. The company never re- the contract would avoid such surprise and ceives it, or has anything whatever to do resulting hardship. Besides, courts have no with it; nor does it in any way appear upon power, under circumstances like those here the company's books. It is a small item, presented, to reconstruct contracts solemnly hardly deserving this prominence in the con- and deliberately made. We do not hesitate, tract; and, if considered worthy of such care- however, to hold that the expenses mentioned ful mention, it is strange that so much indif- in the phrase under discussion must be reaference was exhibited in the use of language. sonable. The courts will not permit insurWhy is the fee of one dollar designated “ex- ance companies to take advantage of this penses," and why is the word “risk” substi- feature of the contract, and collect unreatuted for the word "policy?" The word "ex-sonable charges or expenses. But in the case penses" usually indicates more than one ex- at bar no controversy exists concerning the pense or item, and no one capable of contract-reasonableness of the commission paid to the ing would be excused in law for not knowing that the word "risk" and the word "policy" possess a radically different significance. The company itself could hardly have thought that it was merely providing for the retention of the one-dollar fee paid for writing the policy; a fee of which it took no cognizance, and preserved no record. But the meaning generally assigned among insurance people to the phrase "writing the risk," and the items covered by the expression, "the expenses of writing the risk," are subjects fairly within the domain of oral explanation. Such explanatory testimony was given at the trial by witnesses engaged in the insurance business, and it will now be accepted as controlling. The four insurance agents called by the company agree that the two phrases, "writing the policy" and "writing the risk," do not, in insurance parlance, mean the same thing; and such is the tenor of the same kind of testimony received on behalf of defendant in error. These witnesses, seven in all, unite in declaring that the expense of writing the policy is the fee, usually one dollar, for the clerical labor of preparing the contract; but not one of them squarely and consistently asserts that this is the total expense of writing the risk. There is considerable difference of opinion among them as to what items constitute these expenses; but four of them positively assert, and the remainder fairly admit, that the com agent. Therefore, this particular matter requires no further notice. We are not unmindful of the rule that doubtful provisions of insurance policies are to be construed most favorably to the assured, but we do not feel at liberty to give this rule a broader application in the present case than is embraced within the foregoing discussion. The judgment is reversed, and the cause remanded for a new trial. (14 Colo. 302) ARMOR et al. v. SPALDING et al. (Supreme Court of Colorado. March 28, 1890.) MORTGAGE-DEED ABSOLUTE ON ITS FACE-EVI DENCE. In a suit to recover land conveyed by a deed absolute in form, on the ground that there was a parol agreement that it should operate as a mortgage, it appeared that the conveyance was in trust for the use of the Protestant Episcopal Church, with power to the trustee at will to convey the same, for such price, and upon such terms, as to him may seem fit, "the proceeds of any such sale or conveyance to be held in trust for the same object and purpose above expressed;" that the grantor was indebted to the grantee in a greater amount than the value of the land at the time con veyed; that the debt was evidenced by notes and secured by deeds of trust on the land; that at the execution of the deed in question the notes were delivered to the grantor, but the trust-deeds remained unreleased; that the grantee, before the execution of the deed, wrote the grantors: "Of course, should I ever get out of the property more than the church dues, of which I am simply the trus tee, it will be competent to consider your rights and dues in the matter." The attorney who drew the deed testified that he understood that it was agreed that the deed should be held to be a mortgage, but his partner and his clerk testified that the conveyance was intended as a final settlement of the indebtedness. Held, that the evidence was not sufficient to prove that the deed was a mortgage. Error to district court, Arapahoe county. In 1876 John F. Spalding, as bishop, was the owner of five promissory notes given by John Armor, aggregating $8,380, besides interest at the rate of 18 and 20 per cent. per annum. These notes were secured by trustdeeds upon the lots in dispute. Subsequently an absolute deed was given by Armor to Spalding, as bishop, covering the incumbered premises. Spalding at once took exclusive possession, and has since paid all taxes, insurance, and other expenses. The promissory notes held by Spalding were delivered to Armor, but at the commencement of this suit no cancellation of the trust-deeds, securing the same, appeared of record. At the time the said absolute deed was given, the property covered thereby was not worth, in the market, the full aggregate amount of the notes, together with interest. At the present time its value is estimated to be from $75,000 to $100,000. Plaintiffs in error, as the heirs of said Armor, brought suit in the court below to recover the premises in question, upon the theory that Spalding held them as mortgagee. Prior to the commencement of suit they offered to pay him the aggregate amount of indebtedness, together with interest to that time, and demanded the carrying out of the foregoing alleged mortgage agreement. Their tender and demand were refused. The answer, after specifically denying the allegations of the complaint, in so far as that pleading alleged a trust or mortgage, averred an absolute sale. It also pleaded additional defenses, which, however, need not be stated. A replication was filed, duly traversing the material new matter set up in the answer. The cause was tried to the court, and upon the evidence and pleadings a decree was rendered dismissing the complaint. To reverse that decree the present writ of error was sued out. Wells, McNeal & Taylor and Enos Miles, for plaintiffs in error. S. C. Hinsdale and J. L. Jerome, for defendants in error. HELM, C. J. The complaint in the case at bar avers that the absolute deed given by John Armor to Spalding, as bishop, coupled with the alleged parol agreement existing at the time of its execution, constituted a mortgage. But in pleading the conditions of the defeasance it declares that Spalding was not only to take possession of the property under the deed, "hold the same in trust, collect all rents and profits, pay all taxes and expenses," but also that "when it so enhanced in value that it could be sold so as to leave Armor a surplus, Spalding should sell, satisfy his indebtedness, and pay the overplus to Armor, his heirs or assigns, on a reasonable request." There There was no provision that the title should in any event be restored to Armor. It was conveyed to Spalding with authority to sell. This fact is somewhat inconsistent with the theory of a mortgage; for in mortgages the defeasance ordinarily provides that upon payment of the debt title to the premises incumbered shall revert to the mortgagor. Lance's Appeal, 112 Pa. St. 456, 4 Atl. Rep. 375; Hoffman v. Mackall, 64 Amer. Dec. 637; Reece v. Allen, 48 Amer. Dec. 336. The averments under consideration are more analogous to the conditions of an express trust. Thus regarding the transaction, however, it is obvious that the action must fail. The conditions of the alleged trust not being written, its enforcement is inhibited by the statute of frauds. No bad faith is averred on the part of Spalding in procuring the conveyance, and this case is not covered by either of the exceptions to the foregoing statutory requirement. But counsel for plaintiffs rely, in argument, entirely upon the view that the transaction constituted a mortgage, and that plaintiffs, as the heirs of Armor, since deceased, may assert a right to the reconveyance of the property upon payment of the mortgage debt, with interest. If their major premise be correct, their conclusion correctly follows, unless the remedy is barred by limitation, or for some other reason cannot be enforced. The equitable rule that an absolute deed may be shown by parol to be in effect a mortgage has, in this state, received express legislative recognition. Civil Code, § 261. We shall assume that the mortgage issue is sufficiently presented by the pleadings, and proceed to consider whether the evidence sustains plaintiffs' theory. It should be observed at the outset that only upon clear, unequivocal, and convincing proofs will courts of equity construe an absolute deed to be in effect a mortgage. Whitsett v. Kershow, 4 Colo. 419; Lance's Appeal, supra; Gassert v. Bogk, 7 Mont. 585, 19 Pac. Rep. 281; Jones, Mortg. (4th Ed.) § 335, and cases cited. Plaintiffs have engaged in a difficult undertaking. They are to show a parol defeasance agreement made over 12 years prior to the commencement of suit, with an ancestor, who died soon after making the same, and upon them rests the burden of establishing this agreement so clearly that the mind of the chancellor shall be free from substantial doubt. To maintain the foregoing issue, and discharge the resulting burden, plaintiffs rely upon the following proofs: First. A letter written October 9, 1875, by Spalding to John Armor. Armor was hard pressed for money, and, as the closing paragraph of the letter sympathizingly declares, in "perplexity and distress." was seeking relief, not through the giving of an absolute deed to Spalding, but by urging the latter to release some part of the premises covered by the five trust-deeds, then securing as many notes of Armor given or assigned to Spalding, as bishop. The letter in question was written in response to this urgent appeal. Spalding therein speaks of |