Parker v. Cochrane

11 Colo. 363 | Colo. | 1888

Elbert, J.

It is difficult to treat the second defense interposed by the defendants’ answer as anything more than a plea that the plaintiff is not the real party in interest. In this view the answer is bad. The same issue is presented by the allegations of the complaint and the answer traversing them. Under the issues thus made it was competent for the defendants to show that W. C. Parker, and not the plaintiff, was the real owner. Bliss, Code PL § 321 et seg. The written contract with W. C. Parker set up and alleged in this defense, its breach, and the damages resulting therefrom, is irrelevant matter without the further allegations that W. O. Parker, in making the contract, acted as the agent of the plaintiff, and that the twenty-six head of cattle mentioned in the plaintiff’s complaint were part of the cattle so contracted for, and were delivered under and in pursuance of this contract. These allegations would have made the defendants’ claim for damages a good counter-claim against the plaintiff. If the agency of the husband was not disclosed to the defendants it did not affect the right of the plaintiff to sue in her own name for the purchase price. Story, Ag. § 417 et seq. If the agent failed to comply with the terms of the contract of sale it was the failure of the principal, and any damages resulting therefrom to the defendants could have been recouped under proper pleadings. Id. § 419 et seq., 452; Ewell’s Evans, Ag. *440. There are no sufficient allegations, however, in this defense to justify the application of these principles, and, as we have said, the whole matter, as it stands pleaded, is irrelevant, and constitutes no good defense or counter-claim to the plaintiff’s action. Code, ch. 4, § 62. In this connection it is to be observed that the answer does not ask to be allowed damages as a counter-claim, but that the complaint be dismissed. The theory of the defense appears to have been that W. C. Parker, and not the plaintiff, was the real party in interest, and upon this issue they relied. This was but a traverse of what was already in issue, and was properly stricken out by the court. The action of the court in this respect is not assigned as error, but we have discussed it in view of a new trial, and for the purpose of showing more clearly the errors for which the judgment of the court below must be reversed. Having stricken out the second defense, the traverse of the allegations of the complaint constituted the only issue remaining to be tried. Under these issues it was not competent for the defendants to give evidence of a counter-claim, and all the evidence, therefore, which was admitted for the purpose of showing that the defendants had sustained damages by reason of the failure of W. O. Parker to comply with the terms of the contract, was improperly admitted. Ik this respect the court erred. Upon the evidence properly admitted, and pertinent to the issues to be tried by the court, we are at a loss to account for its finding and judgment. The testimony offered by the plaintiff showed her ownership of the cattle, and her right to recover the purchase price. Upon these points we do not find any conflict of testimony. The testimony of the defendants only goes to the fact that the agency was not disclosed to the defendants at the time of the'sale or thereafter; but this, as we have said, did not affect the right of the plaintiff to sue and recover in her own name. On the pleadings and the evidence we are of the opinion that the court erred in rendering judgment for the defendants.

The judgment of the court below is reversed and the-cause remanded for further proceedings.

Reversed.