on, confident of ultimate restoration to perfect health, when a distressing accident reduced him to a constant condition of invalidism, ultimating in his sad demise.

I knew Judge Beck quite intimately for more than twenty years. I knew him socially, as a man of affairs, as a lawyer and as a jurist. Cold and reserved in his general demeanor, he was withal one of the most companionable of men. He did not make friends rapidly or easily. Of a studious disposition and leading a sedentary life, he was apparently unsocial and uncongenial, yet he never repelled the advances of others or sought to avoid the freest intercourse with his brethren. He was studiously regardful of the interests and feelings of others, and that enfeebled physical condition which so frequently provokes mental irritation seldom disturbed the normal operation of his mind.

Judge Beck was not an advocate. He was not a trial lawyer. When at the bar he found work in court somewhat distasteful. His substantial merits were all in another direction. The office and its duties were more congenial, and those he discharged with conspicuous ability. As an adviser and preparer of cases at nisi prius and on appeal he was more than a success.

The young lawyer struggling for a place on the ladder and the stranger at the bar always found a sympathizer in Judge Beck.

He once said that to discover and assist merit in the profession was one of the greatest pleasures in life, and to the extent of his power he sought to gratify that pleasure.

He loved his profession for itself and looked neither beyond nor above it. To him it was not a means but an end. His ambitions were bounded by its limitations, yet it extended to them. He did not accumulate a fortune in its pursuit nor seek to acquire one elsewhere. Devotion to duty was his watchword, and faithfulness to all things his guide. Quiet, unobtrusive and modest, he lived a noble and upright life, one which we may delight to remember, and emulate with certain advantage.

In the dark hours of the night, in the solitude of slumber, without immediate warning to the nearest relative or the dearest friend, he passed away as peacefully as a child lapsing into sleep. The light of the morning sun streaming through his window kissed his pallid lips, and those who soon after entered his chamber found him cold and still, but with the painless expression of everlasting peace upon his wasted features. Gently, sadly they bore him away, and we who survive him will be fortunate indeed if, when the last hour shall come for us, we shall be as well equipped for the final journey and shall be permitted to enter upon it with so little struggle, so little pain, so little tribulation.

REED, J., responded on behalf of the Court.

Imperious Death has been busy and is inexorable in the ranks of the profession. We are again called to pay the last sad tribute to a loved, respected and able associate.

In the death of the Hon. William E. Beck we fully realize the great loss sustained by the bar and the state. We feelingly and heartily indorse the sentiments and regret expressed in the resolutions of the Bar Association of the state, and the feeling and able memorial of Hon. Chas. S. Thomas as the representative of the Association. In many instances such proceedings are comparatively meaningless; in the presence of death the veil of charity is frequently drawn over predominating weaknesses of life, and very properly the virtues only are remembered. In this instance such is not the case. His was a pure, conscientious and laborious life. Calumny can point to no act to tarnish an honorable, spotless reputation.

I knew him intimately for over twenty years, at the bar, as Judge of the District Court, as a Justice and Chief Justice of the Supreme Court, and lastly, to the time of his death, as the careful and able reporter of the decisions of the Supreme Court and this Court. He went upon the bench at an early date; law was chaotic and illy defined; the precedents and principles of the common law were to be applied to physical conditions unknown and differing materially from those where the laws originated and had been applied to a new civilization, new industries, under new local and climatic conditions. The judiciary and the bar were compelled to formulate and adapt the law to such new existing conditions; to this peculiar labor he contributed fully his share. His life was devoted to his profession; it engrossed him to the exclusion of everything else; no duty was too onerous; no labor too great; careful, conscientious, laborious and painstaking; never swayed by public clamor or influenced by personal considerations. His opinions show careful thought and great industry.

He was modest, unobtrusive, reserved, even with his most intimate friends. He lacked the social qualifications that court and gain popularity, but he was absorbed by the duties of his office, and the great and sole ambition of his life, success in his chosen profession, and trod his selected path with a dignity and singleness of purpose worthy of all emulation.

The bar and the people of this state owe him a debt of respectful gratitude that can now only be paid by years of kind, respectful remembrance.

REPORTS

OF THE DECISIONS

OF THE

COURT OF APPEALS

OF THE

STATE OF COLORADO.

JANUARY TERM, 1892.

THE COLORADO SPRINGS LIVE STOCK COMPANY, APPEL-
LANT, v. GODDING, APPELLEE.

1. PRACTICE.

In the absence of a bill of exceptions containing the evidence, assignments of error based upon rulings admitting testimony or as to the effect thereof will not be considered, but the sufficiency of the complaint may be the subject of inquiry.

2. MEASURE OF DAMAGES.

A party having contracted to purchase hay at an agreed price refused to do so. Thereafter the hay was sold for the best price obtainable. Held, that the measure of damages for the breach of the contract was the difference between the contract price and that for which the hay was sold.

Appeal from the District Court of Weld County.

THE plaintiff, Talmai F. Godding, brought this action for damages sustained by reason of the defendant's refusal to purchase certain hay according to the terms of a written agreement between the defendant and one John E. Godding, which had been assigned to the plaintiff with the knowledge and consent of the defendant, and which contained a provi(1)

VOL. II-1

sion that it should bind the assigns of either party. The plaintiff recovered judgment and the defendant appealed.

Mr. JAMES W. MCCREERY and Mr. WILLIAM HARRISON, for appellant.

Mr. B. L. CARR and Mr. F. P. SECOR, for appellee.

BISSELL, J., delivered the opinion of the court.

This judgment cannot be successfully assailed. The testimony was not preserved by a bill of exceptions, and without it there can be no determination of any matters suggested as error save that predicated on the insufficiency of the complaint. It is quite possible that this pleading is in some respects inartificial, and that an unusually careful pleader might have inserted some further allegations. They were not absolutely essential to the statement of a cause of action, and if the pleading was defective in this particular, it could only be reached by a technical demurrer put in before the issues were made up. The defendants answered and the cause was tried without a jury. In the condition of the present record it will be assumed that sufficient evidence was introduced on the hearing to justify the judgment which the court rendered, and that due proof was made of all facts essential to a recovery which were admissible under the pleadings.

It was an action brought against the Live Stock Company to recover the damages which the appellee claimed to have sustained from the breach of a contract by the company for the purchase of a lot of hay, which had been contracted for between the company and one John E. Godding.

It is true that the contract was in many respects executory, since it covered the crops that were to be cut on Godding's ranch for three successive years. It is wholly unnecessary to discuss the question of the assignability of the contract, though that might probably be maintained under the authority of LaRue v. Groezinger, 84 Cal. 281, since the complaint states that the transfer was with the knowledge and consent of the company.

It would serve no useful purpose to analyze the complaint and state its contents for the purposes of demonstrating, according to the rule in Herfort v. Cramer, 7 Colo. 483, that the complaint presents no such substantial defects as that, taking the facts to be admitted, it can be said to present no cause of action. The contract itself is set out, and that in terms certainly obligated the company to take whatever alfalfa was cut by Godding on his ranch during any of the years specified in the agreement. The complaint substantially avers performance on the part of Godding or his assignee, the failure of the company to accept the property at the time and place where by the agreement it was to be delivered, and alleges the damages resulting from the company's nonperformance. It avers that the hay was sold, and the difference between the contract and the selling price is stated, and that loss is what the plaintiff seeks to recover. That the plaintiff could recover, and that this was the measure of his damages if the proof corresponded with the allegations there is no question. Gordon v. Norris, 49 Ν. Η. 376; Schouler's Personal Property, vol. 2, p. 544.

It will be assumed that the proof was ample and the court justified in its conclusion. There are no other matters which need be considered to determine the rights of these parties on the record and the judgment will therefore be affirmed. Affirmed.