21 Colo. App. 467 | Colo. Ct. App. | 1912
Tliis action was brought March 12, 1907, by appellee (plaintiff below) against appellant (defendant below) to recover a judgment against defendant for work and labor performed, services rendered, and tools and supplies furnished in building a wagon road in El Paso county in 1872. The Hte Pass Wagon Eoad Company, a domestic corporation, was im
In 1872 the Ute Pass Wagon Road Company, a corporation, and the county of El Paso, entered into negotiations whereby the county undertook to assist the Wagon Road Company in building the road. A proposition was submitted to the people, by the commissioners, to purchase capital stock of the Wagon Road Company to the amount of $15,000.00, and issue bonds therefor. The proposition was voted upon affirmatively by the electors and the bonds were issued. One Colton filed a bid to construct the wagon road for $15,000.00, and his bid was accepted by the Wagon Road Company, after which that company appears to have faded from memory, and the county, through its commissioners, at once assumed the active management and construction of the road. It soon became apparent that the bid was too low, and the contractor would not be able to complete the road under his bid. He continued for some time in its construction and then ceased operations, whereupon the commissioners employed plaintiff to complete the construction of the road, and agreed to pay him therefor. The plaintiff completed the road to the satisfaction of the commissioners and their engineer. The commissioners, however, failed to pay
There is scarcely any conflict in the evidence. However, all issues of fact were resolved in favdr of the plaintiff, and we are hound by the findings of the trial court to the same extent as though the facts had been passed upon by a jury.
At the trial we think some evidence was admitted which should have been excluded, but at the same time we are satisfied that the evidence and proof which were properly admitted amply support the findings and judgment of the trial court.
The determination of but one proposition presented by the record will be decisive of the rights of the respective parties to this appeal, and in our judgment it will not be necessary to discuss at length any other issues argued in the briefs. This proposition is presented'by appellant’s tenth assignment of error, which challenges the ruling of the trial court in holding that the claim was not barred by the statute of limitations.
We are called upon to decide whether or not the filing of a claim against the county with the hoard of county commissioners, followed up by reasonable diligence on the part of claimant to have the claim considered and acted upon by the board will arrest the running of the general statute of limitations until the board had allowed or rejected the claim. In passing upon this question we can derive no assistance from our own appellate courts, as our attention has not been called to any’ decision bearing upon the proposition, and we know of none. How
In County v. Stuart, Buchanan & Co., 28 Grattan (Va.) 526, plaintiff presented to .the county board, and attempted to have filed, his claim against the county, within the statutory period. The commissioners refused to permit the claim to be filed, or to take any action thereon, and adjourned. A short time after the board had adjourned plaintiff again- presented his claim to the county for allowance and payment, but at this time the statute of limitations had run against the claim. Upon suit brought the county pleaded the statute of limitations, but the court would not permit it to invoke the benefit thereof, saying: “This order is the foundation of a valid claim against the county of Dinwiddie, if the same was presented within the period of the statute of limitations. In a case resting upon a claim to be settled by the board of supervisors it must be conceded that the time of the commencement of the action is the date of the presentation of the claim before the board.”
We could cite other authorities holding to the rule adopted by Wisconsin, New York and Virginia, but deem it unnecessary to extend the list.
It seems to be the well, established rule in all jurisdictions that the commencement of an action within the statutory period to enforce a claim or demand arrests the running of the general statute of limitations against the same. Appellant’s coun
In this connection we may say that under our view of the evidence the charge of laches against plaintiff cannot be sustained, unless it can be said that the laches consisted in his failure to commence an action on the claim, after waiting a reasonable time for the board to act thereon. This contention, however, can be met by a defense which seems to be well recognized and supported by the authorities. It is clearly stated in 25 Cyc. 1325; viz: “A plaintiff may meet the defense of the statute of limitations by showing that, before the time fixed by statute for the bar, defendant, by his course of conduct, led plaintiff to believe that a suit to enforce his rights would be unnecessary, and thereby lulled him into a feeling of security.” The text is supported by many credible authorities. Upon this phase of the case, and in the light of the evidence concerning the actions of the board toward plaintiff, we hold that the statute of limitations is not available to that body for the purpose of defeating plaintiff’s action.
Appellant’s counsel say that, at any time prior to 1887, appellee could have brought suit against the county upon his claim, without first having made a demand upon the county for payment. It is not necessary to decide' that question, but, if it were, the
A number of other matters are discussed in the briefs and show painstaking research by counsel on both sides, but we are unable to discover from the record any proceeding upon which could be predicated fatal or reversible error. Much space in the briefs has been consumed in debating the question of trust relationship between defendant and the Wagon Eoad Company. We are unable to see that this question has any bearing upon the case. Granting that a trust was well pleaded, it was squarely put in issue by the answer, and on examination of the testimony we find that it completely fails to establish a trust of any character. It certainly cannot be contended that the mere purchase of stock in a corporation creates a trust between the corporation and'the purchaser. Nor can a temporary supervision of the work of a corporation by the purchaser establish such a relationship. Moreover the rights of plaintiff under his contract could in no way be affected by any trust existing between defendant and the Wagon Eoad Company. If the company was indebted to plaintiff at all such indebtedness arose under a contract between them. As we read the record, not a word can be found therein showing that plaintiff ever had any conversation with any officer or representative of the Wagon Eoad Company respecting the building of the road.
The court properly refused to allow interest on the claim. Interest in this state is a creature of
We find no reversible error in this record, and the judgment will be affirmed.
Judgment affirmed.