15 Colo. App. 396 | Colo. Ct. App. | 1900
This action was brought against O. E. Adamson & Company, a copartnership, the members of which, according to the original complaint, were W. M. Van Burén and O. E. Adam-son, to recover the price of apples sold to the firm by the plaintiff, W. H. Bergen, and by certain other persons, who,
Errors are assigned to the rulings denying the application for a change of venue and the motion to strike out the third
Section 27 of the code provides for the trial of actions in the county in which the defendants or any of them may reside at the commencement of the suit, or in the county in which the plaintiff resides when service upon the defendant is made in such county. This application for a change showed that the defendant Adamson resided in Arapahoe county, and the return upon the summons showed that he was served in Arapahoe county; hut the application did not show that the defendant Miller was a resident of Arapahoe county, or that he was not a resident of Mesa county, the county in which the suit was commenced and final judgment rendered. That Adamson resided in Arapahoe county was not eiiough, and, if Miller resided in Mesa county, was wholly immaterial. It was shown that Miller was not in the state at the time the motion was made; but that Mesa county was the county of his residence when the suit was brought, is entirely- consistent with every statement of the application and affidavit. As his residence in the latter county was not controverted, it must, for the purposes of this opinion, be presumed that he resided there, and that, consequently, the suit was brought in the proper county.
But there is another reason why the application was properly denied. The first complaint alleged a sale of the apples to O. E. Adamson & Company; the last complaint set forth facts which, as we shall see hereafter, amounted to a sale; and in all the complaints it was alleged that the transaction was had, and the apples delivered, in Mesa county. The same code section to which we have referred, further provides that actions for goods sold and delivered may be tried in the county where the goods were sold. The application for a change did not deny that these apples were sold to the defendants in Mesa county.
An application to change the trial of a cause from one county to another, should negative every hypothesis in favor of the county in which the action was commenced. Unless
This suit was brought against a copartnership. In the beginning, the plaintiff was in error as to the membership of the firm; but, upon being advised by an answer made by Adamson, as to the real parties composing it, he amended his complaint, and for the first time named Miller as one of the partners. The ground of the motion to strike out the third amended complaint was that the cause of action it stated was not the cause of action set forth originally; and the language of the assignment of error is “ that it was an unwarranted change of the cause of action.” The first complaint alleged a sale of the apples to the partnership. The others, and particularly the third amended complaint, alleged a delivery of the apples to the partnership to be sold by it; the partnership guaranteeing to the vendors a specified sum for the apples, free of expense to them, which sum the partnership promised to pay to them within sixty days from the time of delivery. The argument for the defendants is that the amended allegations changed the transaction from a sale to a consignment on commission, and that hence the two causes of action were not the same. We think counsel has misapprehended the effect of the language. The apples were not taken to be sold on commission. They were delivered to be sold, but with the sales which might be made, the parties delivering the apples had no manner of concern. They were to be paid by the partnership for their apples a fixed price at a fixed time. The apples were delivered to the defendants upon the promise to pay the vendors a sum certain within sixty days. The vendors could not in any contingency reclaim the property, or assert any right in it,
It is also urged that the effect of the amendment bringing in Miller as a member of the partnership, was to set forth a new cause of action, because it changed the parties to the contract. Our reading of the pleadings does not accord with that of counsel. As they present the transaction, the contract was made with O. E. Adamson & Company. O. E. Adamson & Company bought the apples. O. E. Adamson & Company agreed to pay for the apples, and the suit was brought against O. E. Adamson & Company. By the first complaint and by the last, the transaction was between the vendors of the apples, and O. E. Adamson & Company, and there was, therefore, no change of parties to the contract. By serving the summons upon Adamson, the partnership was brought into court; and, so far as the proceeding against the partnership was concerned, it was immaterial what the name of the other member was. Mills’ Ann. Code, sec. 14; Dessauer v. Koppin, 3 Colo. App. 115. The amendment simply set forth the names of both partners instead of one; but the contract it described was, as to both parties and subject-matter, the same contract upon which the suit was brought.
It is assigned that the court erred in ruling the defendants to answer in forty-eight hours, because Miller was not within the jurisdiction of the court, and because the time allowed was unreasonable. In a suit against a partnership, by the code provision to which we have referred, summons may be served on one or more of the members of the firm, and the judgment will bind the partnership property, and the separate
Whether the time allowed for answer was unreasonable, there is nothing in the record to advise us. The case was commenced on the 11th day of April, 1896, and the other giving time to answer was entered on the 21st day of March, 1898. O. E. Adamson & Company, as is evident from the numerous motions and objections they interposed during that period, were entirely familiar with the case, and, we should suppose, were as well prepared to make answer in forty-eight hours as they would have been in forty-eight days.
It is said that the court had no authority to enter judgment by default. The time for answer had expired and none had been made. The defendants were therefore in default ; and, the suit being upon an agreement to pay a specifiéd sum at a specified time, so that the amount due was readily ascertainable from the complaint, and the agreement being admitted by the default, it was proper not only to en
Affirmed.
