33 Colo. 360 | Colo. | 1905
delivered the opinion of the court.
First. That the court erred in reopening the case and permitting plaintiff to file an amended complaint, and in overruling the motion to strike same from the files because of insufficiency and alleged change of cause of action.
Second. The bringing in of Charles Jordan as an additional defendant.
Third. The admission of improper evidence.
Fourth. That the court erred in its findings of fact and conclusions of law, and in entering judgment against appellants.
1. In support of the alleged error in allowing the amended complaint to be filed, it is urged that the same was allowed without motion and affidavit showing good cause therefor... We think a sufficient answer to this is found in the fact that the order was made after the facts upon which the amendment was based were disclosed on the first hearing, and were within the knowledge of the court; therefore an affidavit seting up the same facts was unnecessary. In the circumstances, it is to be presumed that the court deemed the cause, or grounds, sufficiently apparent without a formal'showing. — Davis v. Johnson, 4 Colo. App. 545.
When the order permitting the amendment was made, the case was reopened for the introduction of further evidence, and the cause continued for several months, affording appellants ample opportunity to meet its allegations, and we are unable to see wherein they, or either of them, were prejudiced in any manner by the allowance of the amendments. As said in Davis v. Johnson, supra, “The granting of leave to amend is within the sound discretion of the court, which should be exercised liberally in the interests of
It is also insisted that there was such a variance in the allegations of the amended, from those in the original, complaint as to constitute a change in the cause .of action.
In the original complaint it was alleged that the title to the Nevada claim stood in the name of Win-field C. Jordan, and that he, in the name of Charles Jordan, had executed the lease and option to Fitzgarrald and Cramer, and had consented to the assignment to Greig. Upon the first hearing, it being disclosed that there were two Jordans, father and son, it was alleged in the amended complaint that title to the property stood in the name of W. C. Jordan, who, as plaintiff is informed and believes, holds it in trust for Charles Jordan, and-that Charles Jordan executed the lease and option and the assignment with the full knowledge and .consent of W. C. Jordan.
The primary right of the plaintiff is the lease and option executed by Charles Jordan, and his right to the possession of the property thereunder. The delict or wrong is the execution by W. C. Jordan of the lease and option to the company, and the interference with plaintiff’s possession by the company by virtue thereof.
The object of the action is to have the former adjudged valid, and the latter canceled. There is no difference in these particulars between the allegations of the respective complaints.
While the evidence to show the acquisition of plaintiff’s title was different, in so far as it was to the effect that Charles Jordan, in executing the lease and bond, acted as the agent of W. C. Jordan, with his full knowledge and consent, instead of executing the instrument for him under the name of Charles
2. The objection to the bringing in of Charles Jordan as a defendant, is without merit. If the company and W. C. Jordan have the right to complain because of this, they fail to show that they were in any way injured or prejudiced thereby. Charles Jordan made no objection in the court below, and he is not here complaining of any irregularities in the proceedings by which he was brought into the case.
3. The testimony complained of is that of Fitzgarrald, and the letters written by him to "W. C. Jordan, and the answers thereto by Charles Jordan, as set forth in the statement of facts. This testimony was in relation to the subject-matter in controversy, and was admissible to show the relation of Charles Jordan to the property, and to what extent he represented W. C. Jordan in regard to its management and control.
4. The principal and controlling question presented on this appeal is whether the findings of the court below, that W. C. Jordan is estopped from repudiating the action of his father in the premises and is bound by the lease and option executed by him to Fitzgarrald and Cramer, are supported by the facts and circumstances surrounding the transaction.
It is a familiar rule, too well settled to require the citation of authorities, that unless it is manifest that the evidence is wholly insufficient to support the findings of the. trial court, such finding is conclusive upon this court. And this rule not only binds us so far as it involves the credibility of witnesses and the weight of the evidence, but as well as to the inferences that the trial court properly deduces from the facts
It appears from the record that the Nevada claim was assessed in the father’s name, and in. 1896 the' father wrote Evans in regard to the taxes, and in each year from 1897 to 1900, inclusive; he also wrote Fitzgarrald in regard to them; that Fitzgarrald paid the taxes for each of these years at the request, and the receipts therefor were issued in the name, of the father, Charles Jordan; and that all letters written by Fitzgarrald and directed.to "W. C. Jordan were answered by the father, except the one dated March 10, 1898, upon the margin of which he wrote the words ‘ ‘ Forfeiture waived. ’ ’ That at all times since W. C. Jordan became vested with the title, Charles Jordamhas looked after the Nevada claim and apparently assumed the entire management and control of matters connected with it, and that during all this time, with the exception of signing the lease and bond given to Fitzgarrald and Cramer in 1887, W. C. Jordan gave no attention to the property.
In the face of this record we think the court was justified in questioning the credibility of the Jordans, and in finding that Charles Jordan was, to some extent, interested in, or that W. C. Jordan had permitted him to exercise such a control of, the property as should now estop him from repudiating his father’s' act in giving the'lease and bond to Fitzgarrald and Cramer, and its assignment to appellee, who took the assignment of the instrument without knowledge that there was any question as to its validity, and has, in good faith, expended money in carrying out its terms; and in also finding that the mining company took its lease and bond with knowledge of, ■ and is not now in a position to question, appellee’s rights.
The judgment of the court below is manifestly
It is, therefore, affirmed. Affirmed.
Chief Justice Gabbert and Mr. Justice Bailey concur.