6 Colo. App. 21 | Colo. Ct. App. | 1895
delivered the opinion of the court.
W. Gr. Fraser contracted with the owner of a piece of property in Pueblo to make certain improvements on an existing building. The material part of the contract with which we are concerned relates to the elevation of the walls, the alteration of the windows and doors to correspond with another part of the building, in the rear of that on which the alterations were to be made. Subsequently, Fraser and
As is manifest from the record, the ease has been several times tried, and notwithstanding the magnitude of the controversy, it is important that it should end with the judgment unless some radical error was committed by the trial court. As is usual, it is insisted the evidence does not support the judgment, and that there is lacking in the record some proofs essential to the result. It would be well to state in this connection that according to the defendant’s plea, he was put to considerable expense to complete the work. The court must have found with him in this particular, since it is evident Manners did work of some value. We can better dispose of this particular objection by referring to the circumstance that there is no exception to the judgment. It has been repeatedly decided by both the appellate courts in this state that a party must preserve his objection in the proper form when he seeks to have the case reversed because the
We do not concede the court committed any error in permitting the defendant to amend his answer by inserting the allegation that the work was to be done according to the specifications prepared by the architect. There are two answers to the contention. In the first place, it is tolerably clear that the evidence on this subject was admissible under the original answer. If it was found by the court that the contract was not wholly in writing, but that some of its terms rested in parol, it was entirely within the rules of evidence to permit the defendant to prove all of its elements. Even if this were not true, the amendment did the plaintiff no harm, and he took no advantage of it, so as to be able to raise the question here. In respect to matters of this description, it is well settled a party must show he has been affected in some substantial right if he would complain. The supreme court has clearly established the practice in such matters. If the defendant conceives, when the application is made, he will be harmed by the order, he must ask for a postponement, or seek in some other way, if any be feasible, to preserve and protect "his rights. Gwynn v. Butler, 17 Colo. 114.
A sufficient amendment to the replication was permitted to enable the plaintiff to present any issue necessary for the preservation of his rights, and no evidence which he offered was rejected because not within the scope of the pleadings. He was therefore unharmed by the exclusion of a portion of his plea.
We do not undertake to decide what is indispensable to entitle a party to abandon his agreement and recover on a quantum meruit for what he has done. We should have very grave doubts whether Manners was entitled to recover at all for what he did. We do not care, however, to enter upon
The trial court committed no errors which compel us to question his conclusions, and the judgment will accordingly be affirmed.
Affirmed.