King v. De Coursey

• Citation: 9 P. 31,8 Colo. 463
• Parties: KING v. DE COURSEY.
• Decision Date: 18 December 1885
• Court: Supreme Court of Colorado

9 P. 31

8 Colo. 463

KING v. DE COURSEY.

Supreme Court of Colorado

December 18, 1885

Appeal from county court, El Paso county.

J L. Williams, for appellant.

John Campbell, for appellee.

BECK C.J.

The errors assigned in this case are as follows:

'(1) The court erred in ordering judgment to be entered and rendering judgment against said defendant, Edward J. King and in favor of said plaintiff, for the sum of $250 damages. (2) The court erred in rendering judgment for said or any sum in favor of said plaintiff and against said defendant. (3) The judgment is contrary to the law and testimony in said cause. (4) The judgment should have been for defendant and against said plaintiff.'

The point relied upon for a reversal is that there was a variance between the complaint and the evidence, and that the evidence did not support the complaint; that the proof offered tended to show a special contract placing property, for sale on commission, in the hands of De Coursey, the plaintiff below, to be sold by him at a commission, and a breach of that contract by the defendant, by his withdrawal of the property before the expiration of the time allowed him by the contract to make sale thereof. Counsel for defendant, King, say the declaration is in form an indebitatus assumpsit for money due for work and services, whereas the evidence shows a special contract, and breach thereof, which ought to have been specially declared on.

The complaint is as follows:

'The plaintiff complains and alleges-- First, that the defendant is indebted to the plaintiff in the sum of two hundred and seventy-five dollars on account for services as broker in the sale of real estate, performed at the request of the defendant, at the city of Colorado Springs, El Paso county, Colorado, between the fifth day of October, 1881, and the fifth day of December, 1881; second, that the defendant has not paid the same. Wherefore, plaintiff demands judgment against defendant in the sum of two hundred and seventy-five dollars, ($275,) with interest, and costs of this action.'

To this complaint the defendant answered thus:

'The defendant, answering plaintiff's complaint filed herein, says that he is not indebted to the plaintiff in the sum of two hundred and seventy-five dollars, or in any other sum, on account of for services as broker in the sale of real estate, performed at the request of this defendant at the city of Colorado Springs, El Paso county, Colorado, between the fifth day of October, 1881, and the fifth day of December, 1881, or at any other time or place; and defendant says he is in no manner indebted to the plaintiff, as alleged in said complaint or otherwise.'

The above comprise the pleadings in the cause. The cause was tried to the court without a jury. The evidence of the plaintiff was to the effect that, in consideration of $100 paid the defendant, the latter put certain real estate into his hands for sale, he being a real-estate broker, for a definite period of time, upon a commission; and that before the expiration of that time the defendant sold the property himself, thus depriving plaintiff of the opportunity to make the sale, and then refused to pay the commission. The defendant in his testimony denied the contract, and most of the facts stated by the plaintiff; and upon this testimony as to the cause of action and defense thereto, the cause was submitted to the judge of the county court, who found the issues for the plaintiff, and assessed his damages at $250. The defendant excepted to the findings and judgment, and thereupon prayed this appeal. He saved no exceptions to the evidence. He failed to raise the point...