71 Colo. 385 | Colo. | 1922
delivered the opinion of the court.
The parties plaintiff and defendant in the trial court occupy the same respective position here and are so hereinafter referred to. •
This was an action in replevin. The property taken from the defendant under the writ was ordered returned to him by the court and he was given judgment in the sum of $1,822 damages for plaintiff’s wrongful detention thereof. To review that judgment plaintiff prosecutes this writ, and asks the issuance of a supersedeas.
April 6, 1918, the parties hereto entered into the following contract which, for convenience, will be referred to as Exhibit “A”.
“This agreement between W. S. Ellison of the first part and Ward P. Young of the 2nd part to hereby agree to as follows Ellison to lease his ranch 8 miles North of Debeque, Colo, in Garfield Co. for a term of 3 years with option of 5 years to Ward P. Young of the 2nd part: Party of the first part to give use of horses harness and machinery and the tools found thereon. Also 6 cows and two calves to be shipped from Denver, Colo, to Debeque in car with said W. P. Youngs of 2nd part stock and furniture and add more up to 12 when convenient. Also furnish 2
Said Young of 2nd part agrees to plow up and put in cultivation all lands that can be.put under ditch during term of lease.
Ellison of 1st part to feed 4 horses including two of Ellison to be left on ranch. Ellison also to receive % of butter fat.
Machinery left.
W. S. Ellison
W. P. Young.
The original complaint alleged that under this contract defendant obtained possession of the property therein mentioned; that the contract was intended as a lease of said ranch and personal property; that it was void because unilateral and “signed by plaintiff through mistake and error.” Of what this “mistake and error” consisted or how it arose we are not apprised. A general demurrer to the complaint was sustained. The ruling was correct and should have terminated the case. Leave having been given to amend, an amended complaint was filed from which Exhibit “A” was omitted, as was also the allegation that possession was taken under it. Thereupon defendant filed his “amended answer and cross complaint” admitting plaintiff’s ownership pf the property and pleading Exhibit “A”
“That plaintiff take nothing by his complaint or amended complaint herein, that the same and each of them be dismissed and held for naught, and that defendant have judgment against said plaintiff according to the prayer of his amended answer, for the return of his personal property,” etc., and for costs.
Thereupon a jury was waived and the remaining issues tried to the court which disallowed plaintiff’s cross demand on the promissory note and otherwise gave judgment as herein above recited.
Burke, J., after stating the facts as above.
Plaintiffs only contentions deserving of notice are: 1. That the contract was unilateral and void; 2. That defendant’s cross complaint for damages could not be sustained in a replevin action; 3. That plaintiff’s cross demand on the promissory note was erroneously excluded by the court; 4. That the judgment for damages is unsupported by the evidence.
1. Exhibit “A” was in the handwriting of plaintiff himself. No fraud, deception, mistake or error is alleged in its execution. It is not unilateral nor lacking in mutuality and for aught disclosed by this record is valid and binding, ^nd the court correctly so held. From an inspection of this
2. While defendants demands (other than for return of the property) are denominated “further answer,” “cross complaint,” and “separate and further cause of action,” all are in fact for damages for wrongful taking and detention, recoverable under section 246 Civil Code, 1908. They are not to be defeated by mere mis-nomer or bad form.
3. By Section 63 Civil Code, 1908, a counterclaim or cross demand such as plaintiff sets up by replication, must either arise out of the transaction or arise upon contract and be set up against a demand arising also upon contract. No attempt is made in the pleading to connect the promissory note with anything set out in the amended complaint; and as plaintiff’s cause of action, if any he had, was founded upon tort, no claim based upon contract could be so adjudicated on that ground.
4. On the question of damages it is enough to say that the facts were for the court and the evidence is sufficient to support the findings.
Other alleged errors might require consideration had the trial been to a jury but under the present circumstances they are deemed immaterial.
The supersedeas is denied and the judgment affirmed.
Mr. Justice Teller sitting as Chief Justice.
Mr. Chief Justice Scott not participating.