brokers and their efforts did not result in a sale. They found no purchaser and the sale was not made through their efforts as brokers.

The owner herself subsequently sold the property to the tenant. It is true that the brokers gave to the owner the name of the tenant who had previously made an indefinite statement of his possible willingness to exchange properties. But this of itself creates no legal liability to pay commissions. It at most would only create a moral obligation to pay for the information received, if the same was beneficial. They had failed to find and produce a purchaser under the terms of their employment, and the owner was under no obligation to wait longer or indefinitely, and they having failed to negotiate a sale or exchange with Mr. Tompkins, or even get an offer from him, the fact that the owner subsequently sold to the same party to whom they had ineffectually attempted to sell, has no legal significance.

The law allowing compensations to this class of agents for supposed intervention in real estate transactions has, by many courts, been strained to its utmost tension. But I can find no well-considered case sufficiently broad to allow the appellees to recover under the facts in this case. I certainly do not feel like extending it. The law should be so defined and construed as to afford the owner of property some protection against the persistent claims of brokers, who seek a recovery on purely technical grounds, and at the same time assure to the broker compensation for services honestly and actually rendered.

I cannot indorse the proposition that the placing by the owner in the hands of brokers, perhaps two or three different firms, property for sale for an indefinite time, creates a lien on the property in favor of the broker for commissions in case the owner sells himself at some subsequent time.

In the case of Chandler v. Sutton, 5 Daly (N. Y.) 117, a case very similar and almost parallel with the one under consideration, I find the conclusion of the opinion by the eminent judge so pertinent, and my own ideas so much bet

ter expressed than I can express them myself, that I may be pardoned for quoting it:

"The preposterous proposition of Burnett is, that because he was employed to sell the defendant's house, and undertook to sell it to a particular person and could not, that no sale of it could be made to that person thereafter, no matter how changed the facts may have been, without paying him a commission. That he has only to lodge his caveat to prevent the owner from selling thereafter to any one to whom he, as broker, tried in vain to sell, unless at the peril of paying to him his full commission."

There are several other errors assigned, notably, the instructions to the jury. I may be permitted to say that the instructions are in some parts particularly faulty in submitting to the jury questions of fact not warranted by the evidence. If I did not find the judgment of the court erroneous in refusing a nonsuit, I should be compelled to reverse the case upon the instructions, but having found that no commission was earned, a review of the instructions is unnecessary. The judgment should be reversed and cause remanded.

Reversed.

RICHARD W. HOCKADAY, APPELLANT, V. WILLIAM B.
GOODWIN, APPELLEE.

VERDICT AFFECTED BY PASSION OR PREJUDICE.- When it appears from the verdict that the jury, in arriving at a verdict, acted with such a wilful disregard of both evidence and instructions as to suggest a strong presumption that their minds were swayed by passion or prejudice, the judgment thereon will be reversed.

Appeal from District Court of Chaffee County.

Mr. W. D. WRIGHT, for appellant.

Mr. G. K. HARTENSTEIN, for appellee.

REED, J. This was an action of replevin brought by appellant for the possession of two horses and a wagon. Plaintiff's right to recover was based upon a chattel mortgage executed by one William F. Gardner on the 29th day of November, 1887. Gardner was in possession of the property at the time by virtue of a purchase alleged to have been previously made from one F. Tibbetts. Goodwin, the defendant, gained possession of the property by an alleged purchase from Tibbetts made on the 13th day of December following.

No questions of law are presented. The proceedings of the court were correct and unquestioned, and the instructions to the jury correct. It is claimed that the verdict of the jury was not only unwarranted by the evidence, but in direct conflict with it, and that the instructions of the court were wilfully disregarded; such claims are shown by the record to be well founded.

The court erred in not setting the verdict aside. Aside from the general verdict required of the jury, there were some ten or twelve questions submitted upon which it was to make special findings. The general verdict was not supported or warranted by the evidence, while several of the special findings, notably, first, second, seventh, eighth and eleventh, directly contravene all the evidence in the case. The court seems to have regarded the verdict as excessive and unwarranted by the proof in the amount of damages awarded, and required $75 to be remitted from the sum of $250, which was a very proper requirement as the amount awarded exceeded the value by that amount as fixed by the owner at the time of the alleged sale.

"A verdict of a jury which is clearly against the evidence should be set aside." Keating v. Pedee, 2 Colo. 526. The rule of this court, as announced in Green v. Taney, 7 Colo. 278, is: "that this court will only interfere where, upon the whole record, it appears that the jury acted so unreasonably in weighing testimony as to suggest a strong presumption that their minds were swayed by passion or prejudice, or that they were governed by some motive other than that of

awarding impartial justice to the contending parties." Examination of the record in this case shows it is clearly within the exception to the rule as announced in that case. A more wilful or flagrant disregard of evidence and instructions, and greater exhibition of prejudice can hardly be found. The judgment will be reversed and the cause remanded. Reversed.

HENRY WEBBER ET AL., APPELLANTS, V. GEORGE BRIEGER,

APPELLEE.

1. DISMISSAL OF APPEAL FOR FAILURE TO SERVE NOTICE.-The requirement of the act of 1885, that in an appeal from a county court to a district court, if the appeal be not taken on the day the judgment is rendered the appellant shall serve notice of the appeal upon the appellee, or his attorney, within five days after it is taken, or the appellee may have the judgment affirmed or the appeal dismissed, is mandatory, and vests the district court with no discretion as to its enforcement.

2. APPEAL NOT Perfected UNTIL APPEAL BOND FILED.-Praying an appeal to the district court on the day judgment is rendered, and its allowance upon filing the required bond within ten days afterward, does not excuse or satisfy the requirement as to serving notice of the appeal, since the appeal is not taken, or perfected, until the bond is filed.

Appeal from District Court of Pitkin County.

Mr. C. R. BELL and Mr. T. M. S. RHETT, for appellants.

Mr. W. W. CoOLEY, for appellee.

REED, J. This action was commenced in the county court of Pitkin county, and a trial had resulting in a judgment in favor of appellee against appellant for the sum of $1,029.27, on the 12th day of July, 1889. On the 18th day of July, within the ten days allowed by law, a proper bond for appeal

to the district court was approved and filed under the provisions of sec. 2, of the act of 1885, in regard to appeals from county courts to district courts. Mills Ann. Stat., § 1086.

Sec. 4, of the act of 1885, (Mills Ann. Stat., § 1088,) is as follows: "If the appeal be not taken on the same day on which the judgment is rendered, the appellant shall serve the appellee, or his attorney of record, within five days after the appeal is taken, with a notice in writing, stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee, or his attorney of record. If the appellant fail to give notice of his appeal when such notice is required, the appellee may, at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed or the appeal dismissed, at his option."

No notice of appeal as provided, in this section, having been served, on the 31st day of August counsel for appellee filed in the district court a motion to have the judgment of the county court affirmed, and on the 5th day of October, 1889, the motion was sustained by the court, and the judgment of the county court affirmed, and an appeal from such judgment taken to the supreme court.

On the 28th day of December, after the appeal to the supreme court was taken, the judge and acting clerk of the county court filed a further and additional transcript of the record in that court, by which it is shown that on the day the judgment was rendered, (July 12th,) an appeal to the district court was prayed and allowed upon appellants filing a bond within ten days. This subsequent transcript in no way aids the case of appellants. The bond was not filed until the 18th, and no notice of the appeal was served upon the appellee.

Straat v. Blanchard, 14 Colo. 445, is decisive of this case. It was there held that no appeal was taken until the approval and filing of the bond. The appeal not having been effected on the day judgment was rendered, notice within five days after the appeal was perfected, "that an appeal has been