No. 3937 | Colo. | Sep 15, 1900
delivered the opinion of the court.
A number of errors have been assigned to the judgment,
1, It is said that there is a variance between the allegations of the third defense and the proof in its support. The allegation referred to is that unconditional power or authority was given to the committee to purchase the irrigation system; while the proof merely tends to show the giving of a power that was to become effective only on condition that two-thirds of the water right owners should join in its execution.
The authorities cited are not in point in this case. This court in Salazar v. Taylor, 18 Colo. 538" court="Colo." date_filed="1893-04-15" href="https://app.midpage.ai/document/salazar-v-taylor-6562384?utm_source=webapp" opinion_id="6562384">18 Colo. 538, and the court of appeals in Railway Co. v. Rubenstein, 5 Colo. App. 121" court="Colo. Ct. App." date_filed="1894-09-15" href="https://app.midpage.ai/document/rio-grande-western-railway-co-v-rubenstein-7833277?utm_source=webapp" opinion_id="7833277">5 Colo. App. 121; Colo. Fuel and Iron Co. v. Cummins, 8 Colo. App. 541" court="Colo. Ct. App." date_filed="1896-09-15" href="https://app.midpage.ai/document/colorado-fuel--iron-co-v-cummings-7834045?utm_source=webapp" opinion_id="7834045">8 Colo. App. 541; Outcalt v. Johnson, 9 Colo. App. 519" court="Colo. Ct. App." date_filed="1897-04-15" href="https://app.midpage.ai/document/outcalt-v-johnston-7834225?utm_source=webapp" opinion_id="7834225">9 Colo. App. 519; Rice v. Ross, 9 Colo. App, 552; and Schmidt v. Bank, 10 Colo. App. 261" court="Colo. Ct. App." date_filed="1897-09-15" href="https://app.midpage.ai/document/schmidt--ziegler-v-first-national-bank-7834316?utm_source=webapp" opinion_id="7834316">10 Colo. App. 261, have held that a variance which neither suprises nor harms a party is not necessarily fatal to the judgment. Plaintiff relied on his averment that he never made any sort of a contract by which he agreed to the so-called plan of re-organization. The allegations of his replication are broad enough to admit of the proof offered and admitted. King v. Decoursey, 8 Colo. 463" court="Colo." date_filed="1885-12-15" href="https://app.midpage.ai/document/king-v-de-coursey-6561328?utm_source=webapp" opinion_id="6561328">8 Colo. 463. It alleges that he never entered into a contract of any kind, either that alleged in the third defense, or otherwise, by which he agreed to the plan in question.
Prom the printed abstract it is uncertain whether his ground of objection to proof of conditional authority was specifically upon the ground of variance. But even if it were he did not claim surprise. Indeed, he could not have been surprised, nor did he seek a continuance of the cause for that reason, but proceeded with the trial and introduced evidence in support of his theory of the case. 'By strict practice the defendant might have been required to amend its defence to correspond to the proof, but under the liberal provision of our code, the judgment will not be reversed for
2. It is further urged that, if it be conceded that there was not a fatal variance, nevertheless the proof introduced by defendant that there was a compliance with the condition in the power given to the committee to purchase was merely opinion evidence of the witnesses, and not as to facts. The record is against this position. Several of the witnesses testified explicitly that two-thirds and more of the water right owners signed the agreement by which the committee was empowered to act.
The particular objection seems to be that the witnesses were not required in their examination in chief to say just how many water right owners there were and how many signed this written authorization. But the witnesses testified that they arrived at their ultimate fact that two-thirds signed, by an examination of the records of the old company from which they ascertained the total number of water right owners, and compared this list with the number of such owners who signed the writing creating the committee. If this method of establishing the controverted fact was indefinite or improper, the plaintiff might, by proper cross-examination, have established its insufficiency, or unsatisfactory character. The objection is not good.
8. The third point discussed is that one member of the committee never participated in any of its deliberations. Upon the proposition that when authority to perform an act of a private nature is conferred upon two or more agents, the principal is bound only when the execution is by all, the plaintiff seeks to impeach the validity of the committee’s action in purchasing the property of the old company. It clearly appears however, from the instrument by which the committee was created that a majority was authorized to act, and that more than a majority concurred in the action
Under its finding that the plan of reorganization was assented to by the plaintiff, and the purchase of the irrigation system by defendant made as the result of an authorization of water consumers, in which the plaintiff joined, the trial court declared that it would be inequitable in this action to grant the extraordinary relief prayed. If some irregularities occurred in carrying out the plan of reorganization, and if some inaccuracies in matters of detail characterized the committee’s action, they cannot be corrected in this kind of an equitable action.
The trial court took the right view of the controversy, and no prejudicial error being brought to our attention, its judgment is affirmed.
Affirmed.