29 Colo. 154 | Colo. | 1901
delivered the opinion oi the court.
Plaintiff’s avowed intent was to state a cause of action under subdivision 9 of section 3 of the unlawful detainer act of 1885 (1 Mills Ann. Stat. § 1973), providing that, “ When a vendee, having obtained
1. In support of her writ of error defendant says that the complaint is insufficient because it nowhere appears therein that plaintiff was the owner of the property or entitled to its possession; and that it appears therefrom that the contract was within the statute of frauds, and no consideration for the contract is alleged.
The complaint is not well drawn, and its defects might be reached by special demurrer or motion, but a cause of action can be gathered from its allegations. The statute of frauds furnishes a rule of evidence and not of pleading, and where, as in this complaint, the allegation is that a contract was entered into between the parties for the sale and conveyance of the premises, it will be presumed, as against a general demurrer, that the contract was in writing. Garbanati v. Fassbinder, 15 Colo. 535; Tucker v. Edwards, 7 Colo. 209. It sufficiently appears that a part of the purchase money was paid at the time the cop*
2. A more important error alleged is that the court, relying solely upon the verified complaint, and without taking any additional evidence, rendered judgment, not only awarding restitution of the premises, but also a money judgment in the sum of $86,66 as their rental value while the defendant was unlawfully in possession. The summons did not state that judgment was asked in any specific sum, but the complaint alleged that the rental value of the premises was twenty dollars a month. Defendant asserts as a broad proposition that, under chapter 11 of the civil code which relates to judgments on failure to answer, in all cases except in actions arising upon contract for the recovery of money or liquidated damages only, where a default is entered for failure of the defendant to appear or plead, final judgment cannot be rendered without the taking of evidence. Such is not its fair interpretation. Thomas v. Colo. Nat. Bank, 11 Colo. 511. The second clause of the section provides with reference to the character of actions to which this one belongs that “If the taking of an account or the proof of any fact, be necessary to enable the court to assess the damages or give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that pur
This language implies that in actions within this class there are, or may be, some wherein proof is, and others wherein proof is not, necessary in order to enable the court to give judgment, and the question now is, was, or was not, proof necessary in giving this judgment. The action is not one between landlord and tenant but between vendor and vendee. The damages sought to be recovered are not liquidated; and while the default of the defendant must be taken as an admission of all the material issuable facts well pleaded in the complaint, nevertheless, in an action for unliquidated damages such default is not to be taken as an admission of value or amount. Whether the finding be made by the judge of the court or ascertained by a jury, testimony must first be taken. At common law where a defendant by his default admits the allegations of the declaration, the plaintiff is not required to establish the same by further proof, and in the a'bsence of a provision in our code to the contrary the same rule should prevail under our practice. Yet even at common law, and the same rule we hold should govern here, where the damages claimed are unliquidated, or value of services and the like, not fixed by agreement, are alleged, a judgment on default cannot be rendered without taking proof other than that furnished by the declaration or complaint. 6 Enc. Pl. and Pr. 112, 132 and cases cited; Jones v. Stevens, 1 Colo. 67; Gallup v. Wilder, 1 Colo. 293.
For another reason the judgment must be reversed. The amount of damages demanded in the complaint
Judgment reversed and cause remanded for a new trial.
Reversed.