the control of his property; simply to obtain the aid of a broker to sell it. He employs a broker to procure a purchaser, retaining in himself the power to make binding contracts and conveyances. The terms of sale are sufficient for the broker. So, in the general employment of a broker, when he procures a purchaser able and willing to buy at the terms stated by the owner, he has performed his part; he has done all he can do, and all he was employed to do. The owner may decline to convey or complete the sale. He may so decline for the reason that he may get more by holding and raising his price, or for any other reason; but this does not and should not relieve him from his liability to pay his broker for his services in procuring a person able, ready and willing to purchase at the terms given, the same as if he had completed the sale. Such is the character of the general employment of a broker in the sale of real estate, and it seems reasonable and just, and is supported by the weight of authority upon the subject, as may be seen by the cases first above cited, as well as the following: Alexander v. Breeden, 14 B. Mon. 125; Martin v. Silliman, 53 N. Y. 615; Neilson v. Lee, 60 Cal. 555; McGavock v. Woodlief, 20 How. 221; Lloyd v. Matthews, 51 N. Y. 124; Fisk v. Henarie, 9 Pac. Rep. 322; Bell v. Kaiser, 50 Mo. 150; Hamlin v. Schulte, 27 N. W. Rep. 301; Goss v. Brown, 31 Minn. 484; 18 N. W. Rep. 290; Mooney v. Elder, 56 N. Y. 238; Coleman v. Meade, 13 Bush, 358.

As to the rulings of the court at the trial. It is assigned and argued that the court erred in admitting the evidence of the appellee and the witness Norvell as to the value of services in the sale of real estate, and the customary charges and commissions upon such sales. It is alleged in the complaint that, by the terms of the employment, appellant agreed to pay five per cent. This evidence showed that the customary rate was five per cent. The admission of evidence so variant from the allegations of the complaint is urged here as cause for

reversal of the judgment. In view of all the evidence, together with the character of the contest, we do not think this evidence was of the character to surprise, prejudice or mislead appellant. In the case of Sussdorff v. Schmidt, 55 N. Y. 320, on this point, the law is stated thus: "Under a complaint to recover an alleged agreed compensation for services, a recovery upon proof of and for the value of the services is sustainable. At most, it is but a variance between the pleading and proof, which may be disregarded, unless it appears that it misled the defendant." And section 81 of our code provides that such error shall be disregarded: "If the opposite party is by such variance surprised or misled, the court may on terms allow an amendment of the pleading to conform to such proof." No surprise was even claimed here; so it is apparent that such error is insufficient to warrant a reversal of the judgment.

It is assigned and argued that the court erred in admitting the testimony of the witness Rhodes about the letters from Doty, and in refusing a rule on witness Rhodes to produce the letters. The testimony in this regard was as follows: (By appellant's counsel.) "Question. Mr. Rhodes, were you acting for yourself, on your own behalf, in making this purchase; were you acting for yourself or somebody else? Answer. I was acting for myself in a certain sense. I can explain that if you wish it explained. Q. Well, sir, I would like to have it explained. A. Well, we bought some lands here, Mr. Doty and myself, west of town, and were willing to buy some more if we thought we could get some that would pay. I had an arrangement with Mr. Doty by which I could get the money by drawing on him in New York to pay for land that I would see fit to buy and thought was reasonable, leaving it to my judgment to say whether it should be purchased or not. Q. Was this arrangement in writing, Mr. Rhodes? A. I think I had some letters from Mr. Doty to that effect, and Mr. Doty was here

himself. Q. How long before this transaction was it that Mr. Doty was here? A. Doty had been here, I think, through the summer. I don't know how long, exactly. I was corresponding with him all the time. Q. You had a talk with him about this transaction? A. This particular piece of land? Q. Yes, sir. A. No, I think not. Q. You were corresponding with Mr. Doty? A. Yes. Q. After the time he went away, up to the time of this transaction? A. Yes, off and on. Q. About making these investments? A. Not so much about that as if I was to find any property that was cheap, that we thought some money could be made out of, he would furnish the money to buy it. That was a personal matter between Mr. Doty and myself." Motion was here made by appellant's counsel that the testimony about what the letters contained be struck out. Denied by the court. "Ques tion. Have you those letters, Mr. Rhodes? Answer. I have a great many letters from Mr. Doty. Q. On a former trial of this case, do you remember of producing a certain letter which you claimed was your authority from Mr. Doty? A. No, sir; I don't think I presented a letter as my authority for buying this place. I presented a letter in which Mr. Doty said something about drawing on him if I wanted money. It had nothing to do with the purchase of this place. Q. You never had any letter relating to this place? A. No; I never corresponded with him in relation to this place. My arrangement with Mr. Doty was that I should get the money on my judgment if I wanted to buy real estate. Q. That letter which you have referred to was in relation to this ar rangement that you now speak of, wasn't it, Mr. Rhodes? A. No; I don't think it was. Q. Have you that letter? A. I don't know whether I have or not." Upon which a motion was made by appellant's counsel for a rule to produce the letters, and denied. There was no error in these rulings, as it appears from the evidence in the case that Rhodes had arranged for the down payment, and

was going to take title to himself, so that his relations. with Doty were immaterial to the parties to this case.

66

In rebuttal, over the objections of appellant, certain questions were answered by appellee Harris as follows: Question. Did you state to Buckingham at the time of this first conversation with him that you could not sell the land subject to the lease? Answer. No, sir; I think not. I said to him that it would be difficult to sell it subject to the lease. Q. When did Rhodes first offer you $40 an acre? A. After we arrived at Boulder, at Brainard's Hotel. Q. The defendant testified that you offered him $37.50 per acre instead of $40. A. I offered him $40, and he remarked that $960 was a good deal of commission, and he wanted me to accept two and one-half per cent. I refused to do so. Q. Did you have any conversation with him at the house about his taking $37.50 per acre? A. There was nothing; I said nothing in regard to $37.50 at his house." It is urged here for appellant that these questions and answers were not admissible in rebuttal, for the reason that they were of the premises previously gone over in chief, and that the court erred in admitting the same. It will be seen that they were in the main responsive to, and contradictory of, independent and affirmative statements made by appellant in his testimony of matters not previously disclosed, and impossible of contradiction except in rebuttal. Besides, it is always within the discretion of the court to admit, in rebuttal, evidence which in strictness should have been produced in chief. Smith v. Mayer, 3 Colo. 210.

The judgment should be affirmed.

We concur: MACON, C.; RISING, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

Affirmed.

JONES V. BANK OF LEADVILLE.

1. Courts have no jurisdiction to appoint a receiver except in a suit pending in which the receiver is desired.

2. The appointment of a receiver does not dissolve a corporation either
in law or in fact.

3. The surrender of the franchise of a corporation is not an official act,
but to be effectual must be the act of the stockholders as such.
4. In the absence of equity jurisdiction, properly invoked, the assets of
an insolvent corporation do not constitute a trust fund for pro rata
distribution among all its creditors, nor in such case does any su-
perior equitable lien exist as against a prior attaching creditor.

Error to District Court, Lake County.

On the 25th day of July, 1883, the defendant in error was, and had been, a bank doing a general banking business in the city of Leadville, and on that date presented to the Hon. L. M. Goddard, judge of the fifth judicial district of Colorado, its petition in the words and figures following:

"In the matter of the application of the Bank of Leadville to the court to dissolve its corporate existence, close up the business thereof, and for the appointment of a receiver.

To the Hon. L. M. Goddard, Judge of the District Court: "The petition of the Bank of Leadville respectfully shows to the court: That heretofore on, to wit, the 21st day of August, 1878, the above-named petitioner became and was duly incorporated under the laws of the state, as a banking corporation, and thereupon, upon the filing of its said articles in the proper offices, entered upon the transaction of a general banking business.

"That since said time your petitioner has been largely engaged in said business, and to-day has upon its books, as due to depositors, upward of the sum of $200,000.

"That said petitioner is also indebted to divers and sundry parties in large amounts, upon divers large and sundry amounts in the sum of upwards of $50,000. Schedule of which several indebtednesses will be hereafter filed in court and furnished to any receiver appointed herein.