62 Colo. 307 | Colo. | 1916
delivered the opinion of the court.
The defendant’s motion for a non-suit was sustained. We find no error in this respect. The compensation to be received under the contract was contingent upon a decree or settlement giving the land or a portion of it to the defendant. The proof does not sustain any other cause of action. No question of recovery on quantum meruit is urged. The defendant had the right to dismiss his suit. This point is not controverted. Besides, there is nothing in the contract which attempts to provide that he could not do so. We have not the means of ascertaining whether the plaintiff would have brought the suit to a successful issue, had it not been dismissed. There is no allegation in the complaint or any proof that he could or would have done so. The theory of counsel is, inasmuch as the defendant prevented him from having the opportunity of the chance to do so, he is entitled to recover under the contract, the entire contract price which was contingent. We cannot agree with this position. We are not saying that, from his viewpoint of the facts, he has not a cause of action against the defendant, upon his dismissal of the suit, thereby preventing him from carrying out the terms of the contract and ascertaining if he could not have secured the decree awarding the land to the defendant, but we cannot agree that for this reason he is entitled to recover this fee under the contract.
A similar contract was involved in Western Union Telegraph Co. v. Semmes and Clark, 73 Md. 9, 20 Atl. 127, 128, wherein, at page 19, the court said:
“Nor have we the means of ascertaining whether the plaintiffs would have brought the suit to a successful issue, if it had not been settled. That could be shown with legal certainty only by the judgment of the tribunal charged with the decision of the case.”
Other cases, which, in principle, sustain our conclusion are: Eno v. Sage et al., 83 Misc. Rep. 389, 144 N. Y. Supp. 1062; In the Matter of Snyder, 190 N. Y. 66, 82 N. E. 742, 14 L. R. A. (N. S.) 1101, 123 Am. St. Rep. 533, 13 Ann. Cas. 441; Carey v. Gnant, 59 Barb. (N. Y.) 574; French v. Cuningham et al., 149 Ind. 632, 49 N. E. 797; Joseph’s Adm’r v. Lapp’s Adm’r (Ky.), 78 S. W. 1119; Pratt v. Kerns, 123 Ill. App. 86; King v. Gildersleeve, 79 Cal. 504, 21 Pac. 961; Howard v. Ward, 31 S. D. 114, 139 N. W. 771; Walsh v. Shumway, 65 Ill. 471.
The judgment is affirmed.
Affirmed.