10 Colo. App. 242 | Colo. Ct. App. | 1897
delivered the opinion of the court.
This judgment which Cavis obtained against McCampbell for commissions on the sale of a ranch is assailed because the contract is supposed to be so tainted with dishonesty as to prevent its enforcement and because the court after verdict permitted the plaintiff to dismiss the action as to one of the defendants and take judgment against the other. The case was tried originally before a justice of the peace, appealed to the county court and tried by a jury which found a verdict against the appellant.
A very brief statement of the case will suffice to explain it, and this will of itself afford abundant reasons for the affirmance of the judgment. In 1895, George B. McCampbell occupied a ranch known as the McCampbell Ranch, about a mile and a half from Platteville, which is east of Denver. A year or more prior to that time McCampbell had listed the ranch with the appellee Cavis for the purposes of sale. As originally listed the ranch contained between five and six hundred acres, though a portion of it had been sold at the time of the transactions which gave rise to this action. The situation of the title is not very clear; it would appear that McCampbell had an interest in the land, though the title to one half of it stood in his wife and the title to the other half in one Arment of Kansas. The situation could probably be dug out of the record, but it is beside any question in the case. In the fall of 1895, one Banning, told Mead that he
So far as concerns all questions of fact in the case, they were .found by the jury under unobjectionable instructions against the appellant. We, therefore, assume that the contract was abundantly and sufficiently proven and that McCampbell entered into an express contract with Cavis substantially as he claimed it, and agreed that when the sale was made to Mr. Banning he would pay him a commission without any other and further rendition of service than the production of a purchaser who might buy. The purchase was made by the person who was introduced and for substantially the price at which the property was placed in the hands of the agent. Under these circumstances Mr. McCampbell cannot escape a liability on the express promise which he made, which rested on an apparently good consideration that he must carry out his contract unless there is something in the circumstances which makes out a defense to the suit. Miles v. Mays, 15 Colo. 133.
We are unable to see the force of the suggestion, that the original arrangement between Mead, McCampbell and Cavis was at all tainted with dishonesty or that the method of its execution was contrary to good morals, and the contract unenforceable because of its want of good faith towards the prospective purchaser. The arrangement between these parties was simply the concealment of Cavis’s relations to the contract. In point of fact Cavis had nothing whatever to do with the trade save as stated, and practically Banning dealt with the owner, was liable for no commissions, nor does
The only remaining question respects the regularity of the order winch permitted'the plaintiff to dismiss the action as to Mrs. McCampbell and take judgment against one defendant after verdict had also been rendered against the other. Under ordinary circumstances there would be no qrrestion of this sort in the case. It is provided by statute, which has been interpreted by numerous decisions of the supreme court that where there is a misjoinder of parties, plaintiff or defendant, and the party complaining does not make a timely objection, he cannot afterwards be heard to complain because of the misjoinder of parties. It is difficult to see why the same principle is not applicable to a case which is brought before a justice of the peace and is after-
No other question of sufficient‘importance to require discussion is suggested by the assignments of error, or the arguments of counsel, and we therefore affirm the judgment.
Affirmed.