11 Colo. App. 387 | Colo. Ct. App. | 1898
delivered the opinion of the court.
This suit was brought by the appellant on a contract between his assignors and the appellee. Judgment was asked for a balance alleged to be due, and a decree prayed subjecting certain land to the payment of the judgment. The complaint alleged that on the 7th day of July, 1891, Youngers & Company, a copartnership, entered into a written contract with the defendant P. Randolph Morris, whereby they agreed to plant upon his farm 2,200 trees, certain distances apart, at
The contract contained the following provision: “It is hereby understood and agreed by and between the parties hereto that should any difference arise in regard to the proper performance of work or payments or agreements to be kept and performed by either party hereto, under this agreement, then such difference shall be left to three arbitrators, each party hereto to select one, and the two thus selected to select a third, and the decision of said arbitrators shall be final and binding upon all parties in interest under this agreement.”
The following was the finding and judgment of the court upon the final hearing: “ How on this 22d day of April, A. D. 1896, this cause coming on again for a decision of the court, and the court being now thoroughly advised in the premises, doth find as a conclusion of law that the contract or agreement set out in the complaint herein, and upon which this action is based, provides as a condition precedent to the bringing or maintaining any action thereon or arising out of the same, that all matters in dispute or arising therefrom, and the amount due or owing thereunder, shall be first submitted to a board of arbitration, consisting of three arbitrar tors, one to be chosen by the plaintiff, one to be chosen by the defendant, Morris, and they together to select a third, and that the plaintiff, because of a failure to comply with said condition precedent or offer any legal excuse for such failure, had prematurely brought this action; the court finding, as a matter of fact, that there was no arbitration between the parties of such matters in dispute, or offer on the part
“Wherefore it is ordered, adjudged and decreed by the court, that this cause be and the same hereby is dismissed; and it is further ordered, adjudged and decreed by the court that defendants do have and recover of and from the plaintiff their costs laid out and expended herein, to be taxed by the clerk.”
There was evidence tending to sustain the allegations of the complaint, and objections to questions asked a witness for the purpose of eliciting other evidence in the same direction, were sustained. The theory of the court evidently was that as there was no arbitration, and no allegation or proof of an offer by the plaintiff to submit the case to arbitration, the action would not lie. The only questions discussed, and the only questions before this court for decision, are thus stated in the printed argument of counsel for the defendants :
“ First. Whether the submission to arbitration of the differences between the parties in regard to the proper performance of the work, and the keeping of the agreements of the parties, or a legal excuse for failure to so submit to arbitration, is, under the provisions of the contract, a condition precedent to the maintenance of this action.
“ Second. Whether there was sufficient evidence to sustain the findings of the court that differences did exist between the parties in regard to whether the work had been properly performed and the agreement properly kept, and that Morris objected to the manner in which Fravert performed the contract, and that this objection was bona fide and not capricious. And whether the lower court was justified in finding that there was something to arbitrate, and that the plaintiff had not offered, and that Morris had not refused, to submit the differences to arbitration. In other words, whether the record sustains the court in holding that under the evidence Fravert should have submitted his claims to arbitration before bringing suit.”
But both from the answer of Morris, and from the evidence, it conclusively appears that the difference upon which the right to demand an arbitration was dependent, never arose. The complaint averred that the plaintiff and his assignors had performed the covenants and agreements to which tibie contract bound them. If they had, there was no occasion for difference. The answer denied knowledge or information sufficient for the formation of belief as to whether or not they had performed their contract. This form of pleading is a method provided by the code, of putting in issue allegations of the complaint, the facts concerning which are not presumptively within the knowledge of the defendant. If the facts are presumptively within his knowledge, this form of denial controverts nothing. It amounts to an admission. Whether or not there was a compliance by the plaintiff and his assignors with the terms of the contract, was, we think, presumptively "within the knowledge of Morris. The contract was with him; it bound him to the payment of specific sums, at stated times, in case it was complied with; he was directly interested in its performance ;• he was bound to know what was done under it, in order to know what his liability might be, and the facts were easy of ascertainment. We think, in view of the relation of Morris to the contract, that his denial of knowledge or information left the allegation of performance admitted. But giving to the denial all the effect it could possibly have if properly made, it amounts to nothing more than an averment that Morris, at the time of filing his answer, did not know whether the contract had been complied with
But when we turn to the evidence we find that, as a matter of fact, there was no disagreement whatever between Morris and the plaintiff. The plaintiff testified that when he spoke to Morris about payment, the latter said that he was expecting some money soon, and would pay the amount in a short time. The following is from the testimony of Morris:
“ Q. You haven’t paid Mr. Fravert the last two payments provided for in that contract, or any portion of that, have you ?
“A. I have not. I never said I objected to paying him, but the fact of my not having paid him, I should think, would be a sufficient objection. I never made any formal objection.
“ Q. why didn’t you pay him.
“ A. In the first place I was hard up; if I hadn’t been hard up I would not have paid him, for I did not think I was getting value received.-
“Q. You never made such objection to him, did you?
“A. No, I did not.”
It appears from this that whatever, in the nature of dissatisfaction, Morris may have harbored, he kept carefully concealed, and avoided making it the subject of difference between himself and the plaintiff. In the face of his testimony it is idle to discuss the case of the stipulation to arbitrate. The judgment below was based on a wholly untenable theory, and must be reversed.
Reversed.