18 Colo. App. 216 | Colo. Ct. App. | 1902
The parties to this suit entered into a written contract whereby it was agreed that the plaintiff, Steele, should place a stock of goods and maintain a store at the place where defendant company was conducting mining operations, and that he would also take charge of and maintain a boarding-house at such place for the boarding, at a stipulated price per week, of defendant’s officers and employees. The defendant company agreed to furnish a store room, and the boarding-house and utensils connected therewith, rent free. Among the stipulations in the contract was one that defendant “agrees to aid said Steele in collecting board, and in all legitimate ways in sustaining said store and boarding-house.” This suit was brought by Steele to recover the amount of the balance alleged to be due to him for the board and store accounts of a number of defendant’s employees. Judgment was in his favor for the full amount claimed, and from this defendant appeals.
It was shown by the evidence on the part of
• The oral testimony received with reference to the verbal agreement between plaintiff and the general manager did not tend to vary the terms of the written contract. The latter contained only a general understanding on the part of the defendant to aid the plaintiff in every legitimate manner in the collection of his. accounts. There was no attempted specification as to how or in what manner this aid should be extended. As it then stood, it was of no practical or legal effect. Plaintiff could not have
It is claimed, how’ever, that this agreement was, one to answer for the debt of another, and hence not being in writing, came within the inhibition of the statute of frauds. The evidence shows the undertaking was primary, not collateral. — Coal Co. v. Liddell, 69 Ill. 640. Conceding, however, — which we do not, — that it was an agreement to answer for the debt of another, it can avail defendant nothing. For- one reason, and a conclusive one, the statute was not pleaded. — Hamill v. Hall, 4 Colo. App. 296. For another, equally conclusive, it appears that the defend-ant had withheld from the wages of its employees, and therefore collected, the amounts due in money to plaintiff upon these several statements of account,’ and instead of paying it over to plaintiff, had retained it. It became, therefore, so much money received by it to the use of plaintiff, and having received and retained it, the debt became its own, and not that of another. — Hamill v. Hall, supra.
There was no stipulation that the testimony given by a witness on the trial of the cause in the county court should be proved on the trial in the district court by the notes of the official reporter of the
The judgment will be affirmed. Affirmed.