43 Colo. 366 | Colo. | 1908
delivered the opinion of the court:
Numerous errors are assigned, but we deem it necessary to notice only those which challenge the action of the court below in finding- and adjudging that there was any individual or personal contract between these appellants or between Dodge, Boyle,
The finding that The Leñado Leasing Company ceased operations as a copartnership is in direct contradiction to the allegations in the original verified complaints, as well as the averments in the amended complaints prior to the third. Therein the plaintiffs alleged and swore “that, during the months of December, 1900, and January, 1901, the defendant, The Leñado Leasing Company, was a corporation, and was * * * engaged in the working, preservation, prospecting and development of said lode mining claim, in search of metals and minerals.”
We think it is well settled that admissions and averments made and sworn to in a complaint are binding upon the plaintiff through all the subsequent stages of the case.
In Crater v. McCormick, 4 Colo. 196, 200, this court said:
“It is a rule that ‘whatever has been admitted on both sides in the pleadings cannot'be contradicted either in the subsequent pleadings or even by the verdict. For neither party can retract what he has before conceded on the record; and the jury have no authority to find any other facts than such as are put in issue.’ — G-ould’s Pleadings, § 168. Says Stephens on Pleadings, p. 217: ‘ The effect of such admission is extremely strong, for, first, it concludes the party, even though the jury should improperly go out of the issue and find the contrary of what is there
Furthermore, this finding of the court is without support and in direct contradiction of the undisputed evidence produced upon the trial of the cause.
Neither was there any evidence to support the further finding that the defendants, Dodge, Boyle, McNair and Bising, became and were copartners in prosecuting the work for which a recovery is sought. The work was at all times carried on by the corporation as such, and the contributions by the defendants ymre voluntary loans or advancements to the company by them as stockholders, and were expended and disbursed by the manager and superintendent of the company for services rendered and supplies furnished to the corporation as such.
There was no testimony tending to support the averments of the amended complaint which, in themselves, stated a new and different cause of action than that set forth and relied on in the original complaints. The suits were originally instituted against corporations, alleging a debt by one of them in its corporate capacity in mining operations and work conducted by it as a corporation; and it is apparent that the purpose and object of the actions as originally instituted were to collect a corporate debt against one corporation and impose a lien upon the property of the other. An attempt to change a cause of action against the corporation to one against these defendants as individuals cannot be permitted under the guise of an amendment.
As was said in Davis v. Johnson, 4 Colo. App. 545, 548:
And in Thompson v. White, 25 Colo. 226, 240, this court said: -
“A plaintiff may not, by a replication, any more than by amendment to a complaint, change the cause of action as stated in the original complaint from a legal one to an equitable one, or vice versa.”
The trial court, during the progress of the trial, recognized that the cause of action stated in the original complaints could not be reconciled to that attempted to be set out in the amended complaint by what it said in support of its ruling, excluding as evidence the allegations in the original complaint. It used this language:
“That third amended complaint stands by itself without reference to any other complaint, or amended complaint in the action, as if they had not been drawn, because that has been filed by leave of court; and whatever facts are set up in that third amended complaint are the only facts in the case now; the facts that are stated in the amended complaint or original complaint itself can cut no figure with this third amended complaint, and are entirely eliminated. ’ ’
This was a recognition by the court that a new suit, entirely different from the original suit, might be instituted and prosecuted under the guise of an amendment.'
It was sought to be shown that the defendants Dodge and Boyle had, by a conversation held with the manager Swan, made themselves liable for the payment of the indebtedness sued for.. If we accept Mr. Swan’s version of that conversation, it would not support this claim, and furthermore, such a liability could not be established'under the aver
The evidence relied on to support this judgment was not only inadmissible, but insufficient to support it.
It is unnecessary to discuss the further errors assigned, since the judgment must be reversed for the foregoing reasons.
The judgment is accordingly reversed, and the cause remanded with directions to dismiss the action as against these appellants..
Reversed and remanded.
Chief Justice Steele and Mr. Justice Bailey concur.
