34 Colo. 138 | Colo. | 1905
delivered the opinion of the court.
1. The first objection on which appellant relies is to the ruling of the trial court refusing defendant’s offer to prove that plaintiff was not the real party in interest. There was no error in this. ' The contract of leasing was made with the plaintiff and in his name; therefore the case falls within section 5 of our Civil Code, which says that a trustee of an express trust may sue without joining with him the person or persons for whose benefit the action is prosecuted; and within the meaning of the section a trustee of an express trust includes “a person with whom or in whose name a contract is made for the benefit of another.”
Rawlings v. Fuller, 31 Ind. 255, is not in point, for there the plaintiff was described as the agent in the written contract sued on, the name of the principal was given, the contract was not made in the agent’s name or signed by him, nor did it appear that the agent had any interest whatever in it. Here,
2. Instruction No. 1 told the jury that defendant admits ownership of the plaintiff.- Appellant says this was error. We think not. Ownership is nowhere denied in the answer. By failing to deny it in the first defense, it is admitted. The attempt to put it in issue in the second defense by averring that others than plaintiff are the real parties in interest is ineffectual to do so, since in the same defense that averment is coupled with an admission that plaintiff signed the lease as owner, and defendant entered under the authority of that instrument. A lessee may not thus dispute his landlord’s title.
3. Appellant objects to an instruction which was given by the court to the effect that unless the jury found that a new agreement was entered into for a period of one year the plaintiff was entitled to recover. This instruction is said to be misleading because, appellant says, it was not necessary for him to show a lease for any definite period of time, but that if he was in possession under a parol license for an indefinite term he could not be ousted. He cites some Indiana cases and Sears v. Smith, 3 Colo. 287, to the proposition that if a tenant under a lease for a year holds over after the expiration of the term with the consent of the landlord the law implies a new contract for the same time and upon .the same terms. In the Sears case, Thatcher, C. J., said this was the law in the absence of a new agreement.
When it is considered that the second separate defense is that there was a new agreement for a def
4. The last observation is applicable also to an objection made to another instruction whereby the court apparently attempted to say to the jury that a parol agreement for an indefinite extension of a lease and for a longer period than one year was void under our statute of frauds. Whether or not the instruction, as given, correctly stated the law we need not determine, for it is apparent that defendant could not have been prejudiced by it for the reasons just given.
5. We have scrutinized the record carefully and made more diligent examination thereof than the objections argued by counsel require. We have done so because in going through it the impression was left that during the existence of the lease the agent of the landlord, though apparently without any authority from his principal and without the latter’s knowledge, gave to the lessee some encouragement to believe that there might be a renewal of the lease, in acting upon which the lessee expended considerable money in the way of improvements. Could we spell error we would do so in order to compensate the lessee for the outlay. But we are unable to deduce from the testimony any legal evidence upon which
Perceiving no prejudicial error in the record, the judgment must be affirmed, and it is so ordered.
Affirmed.
Chief Justice Gabbert and Mr. Justice Steele concur.
