26 Colo. 291 | Colo. | 1899
delivered the opinion of the court.
. 1. The principal ground relied on for reversal is that the judgment is wholly unwarranted by the pleadings and proof; that the averments of the complaint and the testimony of plaintiff show that the employment, if there was any, was upon the express condition that there should be no personal liability upon the part of defendant, but that plaintiff should look solely to the proceeds recovered for his compensation. Therefore, the only relief to which he was entitled was to subject the proceeds, or so much thereof as were necessary, to the satisfaction of Ms claim. It will not be denied that the judgment must conform to, and be warranted by, the pleadings of the party in whose favor it is rendered; and that in so far as it grants relief not called for by the issues made thereby, it is unwarranted and cannot be upheld. But we are unable to agree with counsel for appellant that the judgment rendered in this case is obnoxious to this objection. It is true that under the contract of employment as averred and proved, the plaintiff was to look to the proceeds alone for bis compensation; and it will be conceded that if defendant had recognized the agreement and was ready and willing to comply with its terms on his part, he would be exempt from any personal liability to plaintiff; but it by no means follows that he can repudiate his obligations under the contract, and refuse to permit plaintiff to share in the proceeds, and nevertheless insist that plaintiff’s only remedy is to compel a strict performance of the contract on his part. The rights and obligations of defendant under the contract of employment set out in the complaint are similar to those that are conferred upon the debtor who agrees to pay a stipulated amount in specific property. Such agreements are presumed to be in favor of the debtor. Pie may, if he so elects, pay the amount in money in lieu of the articles Ms creditor agreed to receive ; but if he desires to avail himself of the right to .pay the property, or continue his right to do so, he must when payment is due, tender the articles agreed upon. But
So in this case, by refusing to carry out the contract, defendant incurred a personal liability for such damages as the plaintiff may have suffered by reason of such refusal. In other words, by his action in the matter, he furnishes the plaintiff an additional remedy, which he may avail himself of if he so elects. A party so in default certainly will not be permitted, when sued, to insist that plaintiff shall be compelled to enforce a strict and literal performance of the contract against him, without at least averring a willingness to perform on his part. The defendant not only refuses to permit plaintiff to share in the results of the litigation instituted and conducted to a successful termination by him, but denies that he is under any obligation to permit him to do so. Under such conditions, the right of plaintiff to relief in damages for breach of contract, in lieu of enforcing a delivery of such proceeds as he may be entitled to, is clear; and it is equally clear that he is entitled to such relief upon the facts alleged in the complaint. The cause of action substantially stated is: That under and by virtue of a contract entered into between plaintiff and defendant, he was entitled to compensation for his legal services out of certain proceeds, in case the same were recovered ; that he performed services on his part that resulted in a recovery, and that defendant refused to allow him to share in the proceeds so recovered. Upon these facts, the plaintiff is entitled to two kinds of relief, to wit: First, the right to an actual performance on the part of defendant, by compelling him to deliver so much of the proceeds as would compensate plaintiff for his services; second, a right to compensation in damages for the loss suf
2. The next objection urged is that the judgment is not supported by the evidence, either in amount or character. So far as the character of the judgment is concerned, we have already determined that it is supported by the pleadings, and the evidence introduced by the plaintiff was clearly sufficient to support the averments therein. Plaintiff testified that the value of the services rendered was at least $3,500, while othpr attorneys who represented other parties in the suit, and who were familiar with the character of the services rendered, testified that if the payment for plaintiff’s services was contingent upon recovery, as he stated the fact to be, he was entitled to one half the amount recovered. There was also testimony introduced, and which was undisputed, that the stock recovered was worth $5,000, or its par value, which together with the dividends received, made the aggregate amount recovered a little over $7,000. We think, therefore, that the evidence is ample to support the amount of the judgment. There is, however, not only a conflict, but a positive contradiction, between the testimony of plaintiff and that of defendant, upon the question of employment. The defendant denied that he ever employed plaintiff, and claims that whatever services he rendered in the cáse were under an employment by T. C. Henry, who had guaranteed the payment of his bonds, and at whose suggestion he forwarded the bonds to plaintiff. The testimony upon this point is voluminous and utterly irreconcilable, and tbe court below having found, in this state of the testimony, this issue in favor of plaintiff, we must accept such finding as conclusive upon this review.
But it is said that this being a suit in equity, this rule does not obtain, and that we are at liberty to determine, upon review- of the entire evidence, whether under all the circumstances, the finding of the court ought to be upheld. Under our practice, the same rule obtains upon the review of a suit
Affirmed.