45 Colo. 372 | Colo. | 1909
delivered the opinion of the court:
The first error assigned by defendant is that the court erred in overruling his motion for judgment on the pleadings. It is suggested that this motion should have been sustained because the complaint does not state a cause of action. A motion for judgment on the pleadings cannot be converted into, or take the place of, a general demurrer.—Harris v. Harris, 9 Colo. App. 211; Mills v. Hart, 24 Colo. 505; Rice v. Mush, 16 Colo. 484; Cornett v. Smith, 15 Col. App. 53; Hoover v. Horn, ante, 288.
■Whether or not the ruling of the court, in denying defendant’s motion for judgment on the pleadings, was correct, depends upon a construction of the contract sued upon. The contention of counsel for defendant, is that the averments, of the answer not having been denied, it appears that all the stock to which plaintiff was entitled had been tendered; in other words, that plaintiff was not entitled to 1-16 of the capital stock of the corporations, but only 1-16 of the stock thereof received by Bonbright & Company and defendant. The rules of construction of contracts invoked by defendant, where a contract is ambiguous, uncertain, or contains repugnant clauses, are not applicable, for the reason that the contract in question is in no sense ambiguous, nor does it contain clauses which are repugnant to each other. The first and main rule to be observed in-the construction
It appears from the contract that the defendant was the owner of an undivided one-half interest in all rights acquired by virtue of the contract between himself and Bonbright & Company. He sold and transferred to plaintiff his right, title and interest in and to an undivided one-eighth of his one-half interest, and, in order that there might be no question regarding the interest which he sold to plaintiff, he covenants in his agreement that “the said one-eighth of the said one-half interest is represented to be, and is, a one-sixteenth of the entire interest of said partnership, and of any partnership, company, organization or corporation now formed, or hereafter to be formed under and by virtue of the agreements now made and existing affecting the rights, privileges and equities herein transferred.”
There can be no doubt, from this language, but that defendant agreed to transfer to the plaintiff one-sixteenth of the entire capital stock of any corporation or corporations organized to take over and exploit the lands mentioned in the contract between Bonbright & Company and the defendant, and to which such lands were conveyed. Under the contract sued upon, and the facts admitted by the pleadings, plaintiff was entitled to 187,500 shares of the capital stock of The New Mexico Land, Oil & Development Company, and 93,750 shares of the capital stock of The Baton Oil & Gas Company. The court did not
It is also urged on behalf of the defendant that the court erred in rendering a judgment for the stock tendered and also for damages for breach of the contract. If the construction of the contract contended for by defendant was correct, the judgment would be erroneous, but the plaintiff was entitled to a judgment for the value of the stock which, according to the terms of the contract, the defendant has not transferred to him.
It is finally urged that the judgment does not conform to the pleadings. The issues between the parties,- as formulated by the complaint and answer, were the number of shares of stock to which the plaintiff was entitled by virtue of the contract sued upon, and the damages which plaintiff should recover for so much of the stock 'to which he was entitled as had not been turned over' to him by the defendant. The judgment is in accord with these issues. It is the duty of the court, when the parties are before it, to render such judgment as the pleadings and evidence warrant.—Kayser v. Maughan, 9 Colo. 232; Becker v. Pugh, 9 Colo. 589; Ross v. Purse, 17 Colo. 24; McClure v. La Plata Co., 23 Colo. 130; Waterbury v. Fisher, 5 Col. App. 363.
The judgment of the district court is affirmed.
Affirmed.
