7 Colo. 95 | Colo. | 1883
Suit was brought in the court below by appellee to recover the sum of $1,000, upon an alleged contract for services in negotiating the sale of'certain mining claims of appellant. The complaint alleged that in February, 1880, the appellant, Smith, agreed with the appellee, Roe, that if said Roe would assist in the sale of four certain mines, he (Smith) would, in case said mines were sold on or before the 15th day of May, 1880, pay to said Roe $250 for each of said mines so sold before said 15th day of May; and that Smith then and thefe made and delivered to Roe four checks on the M. & M. Bank,/ at Ouray, the payment of each conditioned, as therein expressed, on the sale of one of the four mines named, on or before the date aforesaid; that Roe, hi pursuance of this contract, had the mines bonded to one Suydam, for conveyance of the property to Suydam, on condition that the latter pay to Smith $4,000' therefor, on or before May 15, 1880, which bonds were duly recorded, and by Roe forwarded to Suydam, in New York, together with reports and statements' concerning the property; that afterwards, in March, the said property was sold by
The answer of appellant denied each and every allegation of the complaint, without setting up any new matter.
The case was tried to the court without a jury, and resulted in a finding and judgment for appellee, the plaintiff below, in the sum of $50, which judgment the appellant, Smith, asks this court to reverse on the ground that it is against the weight of evidence, and further, that the evidence wholly fails to support the judgment, for the reason that, under the pleadings, there could be no recovery, except upon the contract declared upon in the complaint; whereas the judgment was as upon á quantum meruit, which was not pleaded in the action.
The facts which appear to be established by the evidence are that in February, 1880, Smith executed four bonds for the sale of four mines specified, at the price of $1,000 each, the bonds running to one Suydam, and the property to be sold by the 15th of May. 1880; deeds for the conveyance of the property were also made and deposited in escrow, and the memorandum checks, as set out in the complaint, were also made by Smith and delivered to Eoe, together with the bonds. These bonds were recorded in the proper county, and were then forwarded by Eoe to Suydam in New York, together with reports, etc., as to the property; that through the acts and representations of Eoe, Mr. Suydam was induced to come out from New York to examine the property, with the view of purchasing it; that after his arrival in April, he learned in some way that he could buy the property, by dealing with the owner (Smith) directly, at a less price,
That there was a failure to make the sale in accordance with the original agreement is evident, but that such failure may have been • due to the conduct of Smith is equally evident. It is not disputed that Roe performed 'all the services that he was required and expected to do, under the agreement, in furtherance of the sale, and that the payment of the $1,000 to Smith, under the sale, such as it was, by Smith to Suydam through Butler, was brought about primarily by means of the previous efforts of Roe. And it cannot be said that the sale might not have been made by Roe under his agreement therefor, had he been allowed by Smith the full time stipulated by that agreement in which to make the sale. It appears from the testimony of Suydam, that soon after he arrived upon the ground to examine the property, he learned that by dealing directly with Smith he could buy the property for less than the price at which it had been bonded to Roe, and this resulted in Smith offering it, through Butler, for $2,000, that sum being the amount Smith was to receive under his agreement with Roe. It seems an attempt on the part of Smith to facilitate a sale by underbidding his own agent (Roe), and getting his
So far as the record shows, he made no objection to a variance between the complaint and the proof in the court below, where, under §§ 77 and 78 of the code, an amendment, if necessary and proper, might have been made to cure the objection, nor is it pretended that appellant was misled by such variance. In such case, the objection is too late when made for the first time in this
Affirmed.