13 Colo. App. 95 | Colo. Ct. App. | 1899
The plaintiff doing business in Alliance, Ohio, contracted with the defendant company, a corporation organized and doing business in Colorado, to construct and erect for it at Leadville, Colorado, a steel oil tank of certain dimensions for which defendant was to pay him the sum of $1,250, together with certain additional sums for the transportation of men employed in the erection of said tank, from Chicago to Lead-ville, and certain freight charges on material and tools. The contract was ’ alleged to have been entered into on April 4, 1894, and on May 21,1894, the plaintiff shipped the materials
There is no express provision of code or statute which authorizes the return of a deposition for amendment, or for its amendment, and neither is there any provision inhibiting this. In the absence of statute, therefore, the usual rule will prevail, which is that it is within the discretionary power of the court to permit the return of depositions and their amendment, where as in this case, the defect or omission was in a matter of form, and did not go to the substance or contents of the deposition. Borders v. Barber, 81 Mo. 642; Donahue v. Roberts, 19 Fed. Rep. 863; American Pub. Co. v. C. E. Mayne Co., 34 Pac. Rep. (Utah) 247; Coal Co. v. Maxwell, 20 Fed. Rep. 187; Weeks on Depositions, § 321. In any event, however, the objection of defendant came too late. . Under section 353 of the code it is required that all objections, exceptions and motions in respect to depositions should be made and disposed of before trial. This deposition was on file in the district court, having been sent up from the county court with the transcript of record, papers, etc., in this cause, and if defendant desired to attack it, either by a motion to suppress or otherwise, it was its duty to do so before the commencement of the trial. By failing so to do, it waived any rights of attack which it might have had. Cowan v. Cowan, 16 Colo. 338.
Defendant urges, however, that the deposition was not a deposition taken under the authority of the district court, and hence could not be used in a trial therein. In other words, it claims that although the deposition might have been perfectly good in the county court, yet upon appeal to the district court, the statute providing that all trials upon appeal shall be de novo, the deposition became of no effect, and it was the duty of plaintiff to have sued out another dedimus, and taken another deposition. This is certainly a novel suggestion, but we do not think it can be sustained, either upon reason or authority. Certainly not upon authority, because
The last objection urged by defendant is that the complaint of plaintiff wherein it attempts to set up a second cause of action, does not state facts sufficient to constitute a cause of action, and in support of this urges that it does not appear from the complaint that the plaintiff ever made any objection to the change in the place for the erection of the tank, or the delay consequent upon such change. By reason of this it contends that plaintiff is estopped from saying that the contract had not been performed according to its terms. We do not understand that the facts of this case bring it within this rule of contracts. Until after the delay had occurred, plaintiff could not estimate what damage it would occasion to him, and possibly might be unable to determine whether any damage would result. The institution of this suit for damages
The objections of defendant are without merit, and the judgment will be affirmed.
Affirmed.