Upon petition for rehearing.
Denison, J.We were wrong in our former opinion in applying Rule 8 of the Rules of 1917. We should have applied Rule 19 of the Rules of 1914. We think, however, the effect of that rule is the same as the present Rule 8.
We still think the complaint states a cause of action. The cases relied on to the contrary in this state are Canal Co. v. Denver, 20 Colo. 84; Colo. Springs v. Corey, 25 Colo. App. 460.
We considered these cases carefully in writing our former opinion. In the Denver case it is true a demurrer was sustained to a complaint because it did not show an appropriation previous to the contract, but Mr. Justice Elliott said, “It is not claimed that the non-existence of such an appropriation should have been pleaded as a defense;” so counsel and court considered the whole matter as if the appropriation had not been made, which was no doubt the fact. What the decision would have been if it had been claimed that the want of appropriation should have been pleaded in defense we do not know, but the court cites People v. May, 9 Colo. 80, in which the lack of a condition prescribed by statute for a valid contract was pleaded as a defense after demurrer to the complaint had been overruled.
The case of Frick v. Los Angeles, 115 Calif. 512, was imuch the same condition.
The statement of the writer of the opinion in Colorado Springs v. Corey, 25 Colo. App. 460, 470, “If it was incum*321bent on plaintiffs to prove prior appropriation, it follows 'as a matter of course that it was necessary for them to allege it,” is wrong. The proposition is true of ultimate facts only, and it was not necessary to that decision, because the law required an express contract, and that suit was upon an implied, one.
In Gelpcke v. Dubuque, 1 Wallace, 221, the United States Supreme Court held that precedent sanctions will be presumed and that the contrary must be pleaded- in defense.
But the city admitted in the answer that she “énteréd into” the contract in question. This admits the ultimate fact and cures the want of allegation in the complaint of anything necessary to sanction or valiadate the contract, if such were necessary. The fact that the copy of the contract set forth in the answer does not show the signature of the Mayor cannot overcome the admission of the ultimate fact that the defendant “entered into” the contract. If the city wished-to make the defense that the Mayor did not sign she should have denied that she’entered into the contract.
We did not overlook the point that the contract was bad for uncertainty, but we did and do not consider it well taken. We seldom mention in opinion all the points made in argument.
The conduct of the city, shown by the record, is that of which any honest private citizen would be ashamed. She has taken the plaintiff’s money, thirteen thousánd dollars, violated the plain terms of her contract in such a way as to make the fulfillment of it on their part a loss instead of a profit to them, and, retaining the $13,000, defends their action for reparation on the ground that the contract which she prepared, elaborately signed and presented to them as valid is not binding on her because she herself neglected to do things that she ought to have done to make it so. Counsel employed to defend this case are not to be blamed for defending it in every way they legally can, but the conduct of the city can be morally justified only on the supposition that the record does not show the *322whole truth and can be explained only upon the theory that, in the great volume of the city’s business, moral considerations are sometimes unavoidably lost sight of.
Decided May 5, A. D. 1919. Rehearing denied October 6, A. D. 1919.Rehearing denied.