53 Colo. 28 | Colo. | 1912
delivered the opinion of the court:
The suit is to recover $590.35, of which $500.00 is claimed for salary, as an officer and employee of the defendant company, and $90.35 for expenses incident to the discharge of his duties in such employment. The complaint alleges that the plaintiff performed services as second vice-president of the defendant, for which the latter agreed to pay him $125.00 a month and attendant expenses. The defendant answered denying the employment and service. Trial was to the court by consent. Plaintiff had judgment for $300.00, and the defendant brings the case here for review on error.
Upon no theory was the plaintiff entitled to a judgment foir $300.00, and there'is nothing in the pleadings ur testimony upon which it can be based'. The court found against -the plaintiff on the item of expense, which, in connection with the particular judgment rendered, is strongly indicative of the fact that the court was not satisfied that any part of the contract had been made out or established by proof. On the question of salary, the right of recovery, not the amount of it, was the issue, and judgment should have been, if for anything, for the full sum. The plaintiff claimed $500.00 on this account, and no other amount; the defendant says nothing whatsoever was due. If the contention of the plaintiff is right, then the judgment should have been for $500.00, and it could not have been for any other sum. If the contention of the defendant is correct, then the judgment should have been in its favor, and to the effect that there was nothing due for salary. There is not a syllable of testimony to support the judgment which was rendered. It is wrong upon any hypothesis and is indefensible. It is a mere arbitrary and capricious judgment, utterly unsupported by the proofs, and one which cannot possibly be upheld. How the court below could find this particular sum due the plaintiff, this court is wholly unable to conjecture. There -is no express finding that there was a contract for salary, as claimed, and the great weight of evidence is the
The judgment is reversed and the cause remanded for a new trial according to law.