14 Colo. App. 187 | Colo. Ct. App. | 1899
On the 10th of February, 1897, Bloom began this suit against the county commissioners of Rio Grande county to recover $1,029.50 for publishing six times in a newspaper called the “Del Norte Daily Enquirer,” a list of the nominations of officers to be voted for at the general election to be held in November, 1896. He alleged he was entitled to pay at the rate of seventy-five cents -per inch or folio for the first publication and forty cents for each subsequent publication, and to count the space by inches or by the theoretical folios which it would take to occupy those inches, and he was therefore entitled to receive the sum for which he brought suit. He alleged that he presented the claim for audit and allowance to the board when in regular sessions on the 11th of January, 1897; that the board remained in session until January 22, when it adjourned, having failed or refused to allow the claim or any part of it. The plaintiff subsequently amended his complaint and inserted an allegation of the reasonable value of the services. This was on the hypothesis, I suppose, of a decision of this court, wherein we held that the statute giving printers seventy-five cents a folio for the first insertion and forty cents for each subsequent publication, did not refer to publications of this description but only to legal documents. However that may be, the amendment was made.
There are at least three persuasive and controlling reasons for the reversal of this judgment. It may be debatable whether any one of them alone would suffice, and thereon we could satisfactorily rest our decision. From a careful examination of the whole record, however, we conclude the situation compels the result.
We are very greatly embarrassed in our determination of the first question by what has already been suggested respecting the condition of the record. There is no doubt a plaintiff must prove the presentation of his claim to the board of county commissioners for audit and allowance, and it must be rejected, or a reasonable time for action must elapse before he may commence an independent suit to recover it. This question has been indirectly considered by this court several times, though we have had no occasion to decide it.
The matter has been recently before the supreme court, and the cause was decided at the present term. Board of County Commissioners of Rio Grande County v. Jas. F. Phye, 59 Pac. Rep. 55. In this case the court held the presentation of a claim for audit and allowance a condition precedent to the right to maintain an action thereon in any court. This disposes of that proposition. The complaint was not demurrable because it alleged the board.adjourned and failed and refused to allow the claim .or any part of it. Had the allegation been supported by competent proof, it would have supported the suit. There was likewise an aider by the an
We therefore conclude the court should have compelled the plaintiff to make proof on this subject, or when he failed to make proof and the cause went to the jury, a new trial should have been granted.
There is still another proposition which to our minds is equally fatal, and this also concerns a defect in the plaintiff’s proof. Manifestly, under the decision the plaintiff could not recover without proof of a special contract whereby the price was fixed unless he established by competent evidence the value of the service which he had performed. The bill of exceptions has been read and reread to ascertain whether there is within its limits in the testimony of any witness competent proof on this subject of value. We are very frank to say, we are wholly unable within the four corners of the bill to find satisfactory evidence of the value of this work. There was offered by the plaintiff and given by two or three of his witnesses, testimony to the point that this was the customary and a reasonable charge for that sort of work in Colorado and at various points in it. As we look at it, this does not prove the plaintiff’s case. We do not undertake to say, for the evidence is very meager and unsatisfactory to
There is another reason why this judgment should not be permitted to stand, which is based entirely on the rulings of
Defendant’s counsel were not permitted to pursue this line of cross-examination, and in this we think the court very clearly erred. The defendant asked the plaintiff respecting his publication of the tax list in the paper, or rather his offer to publish it at three cents a folio, and likewise his offer to publish all the other legal publications of the county at five cents per folio at that time and during that year. It is quite probable, so far as the tax list is concerned, proof of this offer to publish at three cents would not be at all conclusive respecting the value of space, since it is a matter of common knowledge papers are desirous to obtain this publication because of the collateral advantages which are derived from it. However this maybe, it was competent to ask the question and make the proof, leaving it to the plaintiff to explain the reason of his offer, and should it appear the offer was made not on the basis of the value of the space, but because of collateral advantages, this might be considered by the jury as of greater or less weight in determining the force of the testimony. It is clear this line of examination ought to have been permitted and the plaintiff interrogated respecting this offer. It is likewise plain the defendant should have been permitted to examine the plaintiff when he was on the stand respecting his offer to sell space in the paper to the county at five cents or any other sum per folio or per inch which was so much less than that which was charged for the publication of this sample ballot. What weight it would have with the jury we cannot determine, but it ought to have been admitted as tending in a greater or less degree as the case might be, to show the value of space in the Del Norte Enquirer at that
These reasons collectively clearly show that error inheres in the record, the case was not correctly tried, the rights of the parties were not well protected, and for these errors in our judgment the case ought to be reversed and sent back for a new trial in conformity with this opinion.
Reversed.