37 Colo. 193 | Colo. | 1906
delivered the opinion of the court:
The complaint contained five causes of action. The first cause of action was to recover the agreed price for services of plaintiff in testifying in behalf of defendants in a suit pending in the United States court at St. Louis, Missouri, against the officers and agents of defendant company. Also for necessary expenses in connection with said services which defendant had agreed at the time of the employment of plaintiff to pay. The services of plaintiff were in testifying in said suit as to the probable extent in value of mineral deposits in certain mining claims located in the Cripple Creek district in this state. The action is to recover for the balance due for the value of services so rendered, and the expenses so incurred.
We need consider hut the defenses to the first cause of action, as the defenses to the other causes of action are the same.
The first defense is a denial. The second defense is intended to present the two' questions — that the contract was ultra vires, and that it was void as against public policy. The third' defense presents the defense of the statute of frauds, that is, that the contract sued was a special promise to answer for the debt of another, and was void because not in writing. —§-2025, Mills’ Ann. Stats.
The case was tried to the court, which found for the plaintiff and entered judgment in accordance with its finding.
'1. It is contended that the evidence does not show that defendant company ever made any one of the contracts sued on. This contention is not sustained by the evidence. The gist of the facts is; Defendant company owned mining property in the Cripple Creek mining district, this state; its superintendent of mines, one Wharton, went to all of the claimants, except the one whose account is presented in the fifth cause of action, stated to them that litigation was pending in St. Louis, in reference to the value of the company’s property, desired them to examine the properties, prepare themselves to testify as to their value, and further instructed them when notified to go to St. Louis and testify as to such properties in the cause there pending in which the company was interested. The parties so prepared themselves, and by request of defendant’s officers, on two' occasions went to St. Louis to testify to the matters mentioned. The occasion of going the second time was the failure to try the case at its first setting. On reaching St. Louis, where the general offices of the
The point relied upon seems to be that the evidence does not show that Wharton expressly or impliedly, as superintendent of the mines of defendant, had any authority to employ the claimants. ' The case does not rest, however, upon Wharton’s express or implied authority to employ the claimants, because ■the evidence clearly shows that it is immaterial whether Wharton had authority in the first instance to employ the claimants, because the proper officers of the company subsequently ratified his acts, and no question is made but what if they did so the contract was binding upon the company.
As to the fifth cause of action, the facts pertinent to it are not within the contention of appellant, because the employment was by the president of the company, and the services were rendered under the supervision and direction of the president.
2. It is next contended that the contract made with the claimants was ultra vires.
It seems a suit was pending at St. Louis in the United States circuit court against defendant’s officers for sending through the mails fraudulent statements as to the value of its properties. These witnesses were called for the purpose of showing that the statements were not false, that the property had value as represented in the statements. It is rea
3. It is contended that the agreement sued on tended to “pervert or obstruct public justice.” Counsel has failed to show us wherein the contract is subject to this objection. This suit was pending at St. Louis; these claimants were residents of Colorado ; it was desired to have expert testimony as to the value of defendant company’s properties; they were requested to take time, examine the property, have assays made, and be able to testify as to what in truth was the value of defendant company’s properties. The witnesses acting on. this contract informed themselves, and in other particulars, rendered, the services contracted for. There is no suggestion in the testimony that they were employed to pervert the truth, or to in any manner obstruct the course of justice. We think there was nothing in this objection.
4. It is said that the contracts were void as in violation of § 2025, supra, of our statute of frauds. The facts do not bring the contract within the statute of frauds. The contract was a direct promise to pay the stipulated fees and expenses by the defendant company, and was not a contract in any nature to answer for the debt,' default or miscarriage of another person.
The judgment is affirmed. Affirmed.
Chief Justice Gabbert and Mr. Justice Maxwell concurring.