Baden Baden Gold Mining Co. v. Jose

• Decision Date: 10 October 1904
• Citation: 78 P. 313,20 Colo.App. 260
• Parties: BADEN BADEN GOLD MIN. CO. v. JOSE et al.
• Court: Colorado Court of Appeals

78 P. 313

20 Colo.App. 260

BADEN BADEN GOLD MIN. CO. v. JOSE et al.

Court of Appeals of Colorado

October 10, 1904

Appeal from Gilpin County Court.

Action by John Jose and another against the Baden Baden Gold Mining Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. McD. Livesay, for appellant.

GUNTER J.

Money judgment for appellees (plaintiffs); therefrom this appeal.

1. Appellant (defendant) demurred to the complaint. This was overruled, and it answered. The grounds of demurrer were: (1) That the complaint was ambiguous and uncertain; (2) that it did not state facts sufficient to constitute a cause of action. The ruling was correct as to the first ground of demurrer, because the demurrer failed to point out wherein the complaint was ambiguous or uncertain. Canfield v. Jeannotte, 31 Colo. 292, 293, 72 P. 1062. Further, if error was committed in overruling the demurrer it was waived by appellant answering over. Rosenfeld v Rosenfeld, 21 Colo. 16, 18, 40 P. 49; Davis v. Shepherd, 31 Colo. 141, 145, 146, 72 P. 57; Cerussite Mining Company v Anderson (Colo.App.) 75 P. 159. As to the second ground of demurrer, we think the ruling also right. The complaint alleged the employment of appellees by appellant to perform certain services at a certain price, the performance of such services under such employment, and other facts essential to liability. We think the complaint stated facts sufficient to constitute a cause of action.

2. Appellant moved for judgment on the pleadings. This was denied, and the ruling is urged as error. This is based upon the contention that the replication to the counterclaim of appellant admits that appellees were not the real party in interest in the cause of action stated in the complaint. We do not so construe the replication. It admits that a lease was made of certain ground of the Americus lode mining claim to appellees and one Reynolds as copartners, but it does not admit that appellant did not employ appellees as stated in the complaint. No fact stated in the replication is in necessary conflict with the allegations of the complaint.

3. At the close of the evidence for appellees, appellant asked the court to direct a verdict in its behalf. This was denied. The ruling was urged as error. We decline to consider it, because no exception to the ruling was preserved by the bill of exceptions.

4. It is said the court erred in giving certain...