11 Colo. App. 363 | Colo. Ct. App. | 1898
delivered the opinion of the court.
Irving was a plumber and drain layer by trade and did business in the city of Highlands. He followed it for a year or so under the authority of the city and on their license, and made application for another issue in January, 1894. His applications covered both branches of his business and required separate licenses for which there were separate fees, being $10.00 for the plumber’s license, and $80.00 for the drain layers. When he made the application in January, 1894, it was given to the city engineer and he tendered two bonds executed by Ochiltree and Merrill to insure his observance of the ordinances of the city and a correct performance of his work. The applications were indorsed “ approved by the engineer,” and the bonds with the application were turned over to the city council for approval. The bonds were referred to the city attorney who did not regard them as properly executed and they were returned to Irving, or he was advised that they were insufficient in form. He seems to have
Authorities might be multiplied in this direction, but none have been cited to the contrary, and it is a point about which all the courts agree. These ordinances gave the council the power and imposed on it the duty to pass on and approve the sufficiency of these bonds. When they refused to approve them, Irving’s remedy was either to supply new bonds meet
Evidence was offered respecting the objections made to the bonds and it is quite plain that the bonds were not in the proper form, and the council were entirely right in refusing to accept them in that form. The case discloses the fact that Irving was doing business as an individual, though he had a sign and transacted business under the name of the North Denver Plumbing Company. When he executed his bonds he executed them in the name of the North Denver Plumbing Company, by C. Irving. The city attorney objected to the form of the bond, and insisted that Irving ought to execute it in his own name, if he was the only person interested in the business, or that he should incorporate if he wanted to execute a bond in the name of the company by himself as agent or attorney in fact. This was quite proper because the city would have had some difficulty in case of a breach to establish Irving’s liability as the North Denver Plumbing Company. Proof that he was the individual doing business under that name would be a matter of evidence aliunde the instrument and he had no right to impose on the city the burden of establishing that fact in order to recover on an instrument given to secure his observance of the city ordinances. The city attorney’s objection was very properly made and Irving’s duty was to prepare other bonds and tender them to the city council, who would probably, if the sureties had been good, have approved the bonds and issued the license. Whether this is the only question or not, it is quite impossible for us to determine, for it may be notwithstanding Irving’s testimony respecting the financial responsibility of his sureties the council knew them better than he did and may have regarded their bonds as worthless. At all events, it was for that body to pass on the sufficiency of the bonds both as to form and as to substance, and in their discretion accept or reject them. If they saw fit to refuse them, Irving should then have proceeded to compel them to accept the bonds, or if he
In the case as the plaintiff made it, a nonsuit was very properly granted and the judgment will therefore be affirmed.
Affirmed.