to the point which should be taken as the one from which the line should start. The present action was brought by Saguache county against Gunnison county under the act of 1887, to settle the dispute concerning this boundary. The act of 1887 (Sess. Laws 1887, p. 238) provided generally that when the boundary lines of any county were uncertain, and the territory was in dispute between the two territorial subdivisions, the state engineer might be called upon to run the line and determine the question. The act further provided that, if the action of the engineer was unsatisfactory to either of the counties, suit might be brought in a court of competent jurisdiction within six months after the plat was filed by the state engineer, to determine and settle the boundary. The state engineer ran and fixed the line in 1887, and filed the plat in April, 1888, and in May following the present suit was brought. Two questions only were discussed by counsel on the argument, or are presented in their brief. The first is as to the jurisdiction of the court to render a judgment on the evidence establishing the boundary line between the two counties. The argument assumes that the power of the court to render judgment is limited to the determination of the accuracy of the line as run by the state engineer, and deprives it of the power, under the evidence, to adjudicate what the line may be, regardless of the testimony which may have been introduced on the subject. The statute cannot be properly thus limited. It broadly confers upon a court of competent jurisdiction the power to determine and settle the disputed line, and it must be held that the jurisdiction conferred is ample enough to enable the court, on the testimony before it, to determine what the line is, and where it should be run. The collateral objections that the suit was brought in the wrong county, and that the district court of the seventh judicial district was without authority to hear and determine the matter, are likewise without foundation. The action was brought, and the defendant appeared and answered, a replication was filed, and on the issue thus framed 1892.] Со. СоMMISSIONERS V. CO. COMMISSIONERS. 415 the cause was heard and determined. Under these circumstances, it must be held that the district court of that district was possessed of ample authority to render judgment in the controversy. This question has been fully settled by a recent adjudication of the supreme court. Fletcher v. Stowell, 17 Colo. 94. According to that decision, there is no territorial limit to the civil jurisdiction of the district court. If the action is brought in the wrong county, the only remedy is to apply to the court for a change of venue, for which good cause must be shown. There is an entire absence of any showing of this description, and, according to that authority, the district court where the case was tried had full jurisdiction to hear and determine it, and its judgment must be held binding, unless there be some other good reason for setting it aside. The only other objection urged by counsel is that it is not in accordance with the testimony. The rule in such a case is clear, definite, and well settled. No judgment will be disturbed upon this ground unless the record shows that it comes clearly within the exception to the general rule. As the case is presented to this court, it is impossible to say that it comes within the exception. It was rendered upon conflicting testimony, and on this evidence the court rendered a judgment establishing the line between the two counties; and, while it is possible this court might have reached another conclusion if originally called upon to determine the question, yet it is not clear that the judgment is so unsupported by the evidence as to permit this court to depart from the settled rule governing such cases. Perceiving no error in the record which calls for a reversal of the judgment, it will be affirmed. Affirmed. 2 416 19c 95 2 416 18 454 GREENE ET AL., PLAINTIFFS IN ERROR, V. LATCHAM, STATUTE OF FRAUDS. Where plaintiff parted with nothing in consideration of defendant's promise to pay the debt of another; did not surrender the right to enforce its claim against original debtor, or waive any lien upon his property, the promise not being in writing, was within the statute of frauds and void. Error to the District Court of Arapahoe County. Mr. JAMES H. BROWN and Mr. MILTON SMITH, for plaintiffs in error. Messrs. COE & FREEMAN, BENEDICT & PHELPS, and Mr. LUCIUS W. HOYT, for defendant in error. RICHMOND, P. J., delivered the opinion of the court. On the 10th of August, 1888, Frank Latcham, defendant in error, made a contract with one C. G. Vaughn for the construction and erection of a dwelling-house and barn in the city of Denver. Thereafter in the month of September, 1888, Vaughn con. tracted with the Chicago Lumber Company, plaintiffs in error, for the lumber and building materials required to perform his contract with Latcham. After a portion of the lumber and building materials had been furnished to Vaughn by the company on the contract, and about the 6th of October, 1888, a conversation occurred between defendant, Latcham, and Fred C. Fisher, a member of the Chicago Lumber Company, in which conversation Latcham expressed himself as dissatisfied with the progress that Vaughn was making in the construction of his house, and said that unless Vaughn made more rapid progress in its erection, he would complete it himself; that he had had bad reports about Vaughn and wanted to know as to his responsibility. Whereupon Fisher suggested that the reports might be made by other lumber dealers for the purpose of diverting business from the company to them, and in doing that they might unconsciously injure Vaughn, and it was possible that their statements were not correct; that Vaughn had been doing business there, and the company had no reason to think but what he was responsible. Q. What, if anything, was said about the payment for these materials? A. Well, the question then arose-of course I didn't know Vaughn very well; he had traded with us perhaps sixty days. I asked him what was going to become of our lumber account, and he replied that he would pay our lumber account. That was substantially all that was said at that time. The testimony shows that the company continued to furnish all the materials that were ordered, and Fischer further testifies that they relied upon Latcham's statement. One Brown, foreman of the Chicago Lumber Company, testifies that Latcham said he would see that the lumber was paid for. It is further in testimony that Latcham had informed a Mr. Rundle that he had been fool enough to agree to secure the Chicago Lumber Company their bill, but that he would not pay any other bills contracted by Vaughn. It is also shown by the testimony that all of the lumber delivered was charged to Vaughn, and receipted for by him or his employee; that the account on the books was not transferred to Latcham, and that the company were constantly calling on Vaughn for payment of the bill; that no account was ever made, put or presented to Latcham; and that prior to the institution of the suit the company, through its representative, filed a claim for a lien upon the house for lumber furnished. The evidence also shows that the company was well aware of the fact that Latcham was continually paying Vaughn on his contract as he progressed with the construction of the house, and on several occasions made inquiries as to the VOL. II-27 amount that was due Vaughn under the contract, and yet at no time did they inform Latcham that they were holding him under his promise of payment for the amount of their claim. This is substantially all of the testimony upon which the plaintiff sought to recover the sum of $1,260 from Latcham for materials furnished in the construction of his house. After plaintiffs had introduced their testimony defendant interposed a motion for judgment, and the court instructed the jury that the agreement between the company and Latcham was a promise to answer for the debt of another, and not being in writing was void, and that their verdict must be for the defendant. In compliance with the instruction the verdict was so returned, and judgment entered against the plaintiffs. To reverse this judgment this writ of error is prosecuted. It is contended by plaintiffs in error that the promise of Latcham was an original one and not collateral; that inasmuch as he derived a benefit from the furnishing of the lumber by the company, which was used in the construction of his house, that his promise was made on a good consideration, and was unaffected by the statute of frauds. The contention of defendant in error is that the language used did not amount to a promise to pay on the part of Latcham; that inasmuch as Vaughn continued to perform the contract, and the company continued to deliver the lumber upon his order and to charge it to him, that there was no new consideration moving from the company to Latcham, and no change of the relation of the parties was created. That, practically, the understanding of the conversation was that if Vaughn was discharged in such case Latcham would then become responsible for the lumber furnished by the company. We think that the District Judge was clearly right in holding that the contract as proved was void under the statute. There was no new consideration for the defendant's promise. The evidence does not show that the company |