12 Colo. App. 385 | Colo. Ct. App. | 1898
On the 10th day of November, 1894’ the Colorado Fuel and Iron Company commenced its action against Delos A. Chappell to recover for the alleged wrongful conversion of a fund with which the defendant had been intrusted by the plaintiff’s assignor. In due time the defendant answered. The plaintiff demurred to the answer, and, upon the hearing of the demurrer, the plaintiff took leave to amend its complaint. The amended complaint, which was filed on the 23d day of January, 1896, consisted of two counts, which appear to have been simply different forms of statement of the same cause of action. The defendant demurred to the first count, and answered the second. The demurrer was sustained. The answer set forth six defenses, to the fourth and sixth of which the plaintiff demurred. The demurrer was sustained as to the fourth, and overruled as to the sixth. The plaintiff then filed its replication. A demurrer was interposed and sustained to the replication to the second defense. Thereupon the plaintiff filed its amended replication to that defense, which, on motion of the defendant, was stricken out, and judgment entered in his favor on the pleadings. The plaintiff has brought the case here by appeal.
Inasmuch as the only questions for determination here, arise upon the pleadings, such examination of the averments of both parties, as is necessary to an intelligent consideration of those questions, must be made. Error is assigned to the ruling upon the demurrer to the .first count of the complaint, but as, in our view, all the proof necessary to establish the cause of action there stated, is also admissible under the al
The answer stated, among other things, that on the 31st day of December, 1888, the coal and iron company and the defendant came 'to a mutual accounting concerning the matters stated in the complaint, which accounting covered all moneys received by the defendant from the company pursuant to the contract and the verbal agreement, and all moneys
The replication admitted the accounting and settlement as stated in the answer, but averred that the settlement was brought about by the fraudulent conduct, concealment and representation of the defendant in this: That at the time it was made he represented to the company that he had expended the money in accordance with the terms of the written contract and the verbal agreement, and that the company, knowing nothing to the contrary, relied upon the representation ; whereas, in fact he had not expended any part of the money as required by the contract and agreement, or for the plaintiff’s benefit, but had converted the whole and every part of it to his own use. The replication also alleged that the fact of the falsity of the representation was not known to the coal and iron company until long after the settlement. The grounds of the demurrer to this reply were that it did not show that the fraud which it alleged, was discovered within three years next preceding the filing of the replication, and that it did not state facts sufficient to constitute a replication. The amended replication did not differ from the other, except in that it contained a fuller statement of the facts constituting the alleged fraud, and, in addition, averred that those facts were not discovered until within three years next before the commencement of the action. This last allegation was probably incorporated into the pleading to meet the supposed view of the court, but in our opinion, as will be seen hereafter, it was unnecessary, and must be regarded as mere surplusage. This amended replication, on a motion, the grounds of which were that it did not constitute a reply, that it was a departure, that it did not allege when the fraud was discovered, and that it attacked collaterally an account stated, was stricken out.
And here we may pause for a moment to notice an objection to the replication which seems to have arisen in the mind of the court. In a written opinion, setting forth the grounds of its ruling upon the demurrer to the replication, it stated as a reason for holding that the replication was not a proper pleading, that if the plaintiff were permitted to show that the account stated was obtained by fraud or false representation, the defendant would be placed in the position of being compelled to meet the proof without any pleading on which to base his evidence. The replication is the last pleading allowed, and we infer from the observation that the court was of the opinion that because the defendant could not plead further, the new matter of the replication, if suffered to remain, would in some way place him at a disadvantage. But, for the purposes of justice, it may be as necessary to confess and avoid in a replication as in an answer, and the court must have overlooked section 71 of the code which provides that a statement in the replication of matter in avoidance shall, on the trial, be deemed controverted by the adverse party.
The complaint stated a complete cause of action. The plaintiff was not bound to anticipate the answer of the defendant, but when the latter pleaded a settlement in bar of the action, necessity was upon it to meet' the plea, if it could, by facts in avoidance. It was error to sustain the demurrer to the original replication. However, as the pleading was amended, the error is not now available, bu„t the striking out of the amended replication, the question of the correctness of which is properly before us, was equally erroneous, and necessitates a reversal of the judgment.
While what we have said disposes of this appeal, we would hardly feel that we had done our whole duty if we did not bestow some attention upon a position assumed by the learned counsel of the defendant, and elaborately and ably supported by them. The argument is that the replication is an attempted
The charges in this replication, of fraud and misrepresentation by the defendant, did not constitute the statement of a cause of action. The real question was whether the settlement was intended to embrace this controversy. If the coal and iron company was ignorant of the existence of the facts out of which the controversy finally arose, then the claim now asserted was not intended to be, and was not, included. The replication asserted a want of knowledge of facts which it was necessary to know in order to a settlement of the matter in litigation, and the fraud of the defendant was alleged, not as the groundwork of an action, but as a reason for the ignorance. The cause of action was the misappropriation by the
There is little further to be said concerning the case. There were other defenses alleged in the answer, but they were replied to. The errors assigned to rulings in the course of the settlement of those pleadings need no notice, because issues are joined, and the case is ready for a trial of the facts. The objection in behalf of the plaintiff that the court refused to carry the demurrer to the first replication back to the defense, and adjudge it also insufficient, is not well taken. While it is true that a general demurrer reaches back to the first bad pleading, and while we have grave doubts whether the defense is sufficiently comprehensive to make it a good plea, yet the plaintiff replied, and as we think, made good the deficiencies of the answer. But that replication was sufficient. The demurrer should have been overruled, and it therefore could not have been carried back to the answer. The amended replication took the place of the other, and was equally good, and the order striking it out was as erroneous as that sustaining the demurrer. Its statement that the fraud was not discovered until within three years before the commencement
Reversed.