Belisomo v. Ceresa
| Decision Date | 06 December 1926 |
| Docket Number | 11637. |
| Citation | 80 Colo. 325,251 P. 531 |
| Parties | BELISOMO v. CERESA. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, El Paso County; Arthur Cornforth, Judge.
Action by John Ceresa against Henry Belisomo. Judgment for plaintiff, and defendant brings error and moves for supersedeas.
Supersedeas denied, and judgment affirmed.
Young & Meikle, of Colorado Springs, for plaintiff in error.
R. L Chambers, of Colorado Springs, for defendant in error.
Ceresa had a verdict and judgment against Belisomo for $482, upon a contract to pay money, and the latter brings error.
The essential facts are that Ceresa bought a lot and began to build a house on it, and, to pay for it, borrowed $400 of Belisomo, giving a note. He became embarrassed and later the litle to the lot and house was transferred to Belisomo, who made further advances to complete the building, for taxes etc., under an agreement to do so and to dispose of the property and divide the profits equally. Ceresa claims, and Belisomo denies, that thereafter an agreement was made that Belisomo should keep the property, cancel and surrender the note, and pay Ceresa for the time he had worked on the house which he testifies was 110 days at $4 per diem. To pay for this work was the contract upon which the verdict and judgment were rendered.
The plaintiff in error claims: (1) That the evidence did not prove the case made by the pleadings. (2) That the evidence proved no case at all. (3) That certain evidence was erroneously admitted. (4) That instructions requested by him were refused.
1. Upon the first point, the complaint was designed to state a cause of action for work and labor, and to recover wages therefor; i. e. a promise to pay in consideration of work performed for defendant. The contract proved, however, was to pay for work performed by plaintiff, for defendant and himself, in consideration of the surrender of plaintiff's interest in the profits on the sale of the house. The evidence then was at variance with the complaint.
The defendant, however, moved for a bill of particulars, which was furnished, and sets out facts in accord with the subsequent proof. The replication also sets out such facts. If these constitute a departure, they were not attacked by demurrer, and so a judgment on them could not be arrested. 1 Chit. Pl. 648. We think it follows that no writ of error will lie. It conforms to the spirit...
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Murray v. Montgomery Ward Life Ins. Co.
...the issue upon which this controversy was submitted to the jury did not warrant the instruction offered. See Belisimo v. Ceresa, 80 Colo. 325, 251 P.2d 531 (1926). Moreover, another countervailing policy consideration is also present in this case: that of discouraging fraudulent statements ......
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Allred v. Lininger, 20315
...the price on the basis of the reasonable value of the house. Johnson v. Staley, 32 Ind.App. 628, 70 N.E. 541. See also Belisomo v. Ceresa, 80 Colo. 325, 251 P. 531, wherein a similar rule was applied to the determination of price in a contract for work. Under general principles of contract,......