Cody v. Raynaud

| Colo. | Feb 15, 1871

Hallett, C. J.

This was assumpsit in the probate court of Arapahoe county, for work and labor.

Plaintiff in error, who was defendant in the court below, was served with summons in Grilpin county, and the first assignment of error questions the power of the probate court to issue process to that county.

The jurisdiction of probate courts in civil actions, when, the sum in cofitroversy does not exceed $2,000, was first conferred by the legislative assembly in the year 1864. By the fifth section of that act, it was declared that the probate courts named should have concurrent jurisdiction with the district courts in all civil cases at law and in equity, where the debt or sum claimed should not exceed $2,000. By the sixth section the rules of practice of the district courts were made applicable to probate courts, and by the ninth section the probate courts are declared to be courts of record, and “they shall have a seal, and in their respective counties shall possess all the powers now vested in the district courts in this territory in all matters in controversy where the debt or sum claimed does not exceed $2,000.”

This act did not comprehend the probate court of Arapahoe county, but in the following year an amendatory act extended the provisions of the first to all probate courts in the territory except that of Gilpin county. In section three of this last act jurisdiction was again conferred upon probate courts, but in language different from that of section five of the act of 1864, the words “concurrent jurisdiction with the district courts” being omitted from the act of 1865. But we doubt whether this omission is of any importance. The latter act comprehends “all actions, suits and proceedings at law brought for the recovery of money not exceeding in amount the sum of $2,000,” and this jurisdiction is as plainly concurrent with the district courts as if it were so expressed.

One of the purposes of the act of 1865 was to withdraw from probate courts the equity jurisdiction conferred by the act of 1864, and to this end new language was used in conferring jurisdiction, which differs of course from that used in the first act, but not significantly, except as to the purpose which the assembly had in view.

It is to be observed also, that section 9 of the act of 1864, which gives to probate courts, within the limits prescribed to them, all the powers conferred upon district courts, was not expressly or impliedly modified by the act of 1865, and the same is true of the sixth section of the first act, which applied the practice of the district courts to the probate courts.

We are, therefore, clearly of the opinion that the second section of chapter 70, Revised Statutes, which prescribes the venue of civil actions is applicable to such actions in probate as well as district courts. By that section in certain cases actions may be brought in a county in which the defendant does not reside, and the summons served in the county of his residence. And of late it has not been thought necessary to aver in the declaration the facts which will give the process such extra-territorial force. Kenney v. Greer, 18 Ill. 432; Hamilton v. Dewey, 22 id. 490.

These cases also show that the question of jurisdiction is raised by plea in abatement and not by motion as was attempted in this case.

Much was said at the bar upon a question which was determined by this court in the case of Davis v. Cass. Probate courts are of limited, but not inferior, jurisdiction.

We are unable to deny the jurisdiction of the court below, and we will now consider the sufficiency of the evidence to support the judgment.

It ajDpears from the evidence, that, in the month of March, 1869, defendant in error agreed with plaintiff in error to work for her one year as a milliner, and that she left the service of plaintiff in error after working a little more than three months. This special contract is not set out in the declaration, and if it were it is difficult to see how defendant in error could recover upon it, since it was never performed.

But a party may, for good cause and when the fault is not his own, abandon a special contract and recover the value of services upon an implied assumpsit. Lantry v. Parks, 8 Cow. 63; McClure v. Secrist, 5 Ind. 31" court="Ind." date_filed="1854-05-23" href="https://app.midpage.ai/document/mcclure-v-secrist-7032518?utm_source=webapp" opinion_id="7032518">5 Ind. 31; Eldridge v. Rowe, 2 Gilm. 91.

In such case the law raises a contract for the protection of the innocent party, and the express contract is not involved, except for the purpose of ascertaining whether there was cause for abandoning it.

Perhaps the price fixed by the express contract may be of some value on arriving at the compensation to be awarded under the implied contract, but the parties are not bound by it.

The measure of damages is the value of the services or materials furnished, and the aggrieved party is no more bound by the contract price than by the other provisions of the instrument.

If the defendant in error quit the service of the plaintiff voluntarily and without the fault of the latter, she cannot recover, and the special contract being shown, it ought to appear that there was sufficient cause for abandoning it. Upon this point the evidence is insufficient. A witness testified that defendant in error left the service of plaintiff on account of abusive language and bad treatment, but this is the opinion of the witness and no evidence that such language was used or that plaintiff’s treatment of defendant was bad. The cause upon which defendant in error quit her employment is a fact to be proved by testimony of specific acts of plaintiff toward defendant, and not by such testimony as this. Evidence was given of a demand for wages by defendant upon plaintiff in error with a view to show the latter’s acquiescence in the justice of that demand. In our- opinion the conduct of plaintiff in error upon that occasion will not warrant such an inference.

The judgment of the probate court is reversed, with costs, and the cause remanded for a new trial. ,

Reversed.