Kruschke v. Quatsoe

• Citation: 49 Colo. 312,112 P. 769
• Parties: KRUSCHKE v. QUATSOE.
• Decision Date: 03 January 1911
• Court: Supreme Court of Colorado

112 P. 769

49 Colo. 312

KRUSCHKE v. QUATSOE.

Supreme Court of Colorado

January 3, 1911

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by J. E. Quatsoe, doing business as the Piano Advertising Company, against Isaac Kruschke and another. From a judgment for plaintiff, defendant Kruschke brings error. Reversed and remanded.

Perkins & Main and Rogers, Ellis & Johnson, for plaintiff in error.

C. F. Miller, for defendant in error.

HILL J.

The defendant in error, as plaintiff, filed his complaint in the district court of the city and county of Denver, making Isaac Kruschke and W. M. Jones defendants. The material part of the complaint, in substance, is that at La Plata county the plaintiff and Isaac Kruschke, one of said defendants, entered into a contract. Then follows a copy of the contract, which includes matters pertaining to pianos, certain schemes of advertisement, publication in newspapers, etc., in connection therewith; all to be performed at Durango, in La Plata county. Under certain conditions named the defendant Kruschke agreed to pay to the plaintiff at the city of Lamar, Colo the sum of $204. It was dated August 10, 1906, and purported to be signed at Durango, Colo. The complaint further alleged that upon the 11th day of September, 1906, for value received from this plaintiff by said defendant W. M. Jones, he guaranteed and agreed to pay plaintiff the amount due or to become due upon said contract; said guaranty being in writing and upon the back of the Kruschke contract, as follows '9/11/06. For value received I hereby guarantee payment of within contract, when due, and I assume joint liability with the make, I. Kruschke.' Performance of the contract by the plaintiff was alleged, and judgment prayed for the amount due.

The defendant W. M. Jones accepted service of the summons at Denver. The defendant Kruschke was served in La Plata county and he thereafter filed his motion for a change of venue, and upon the same day filed a demurrer to the complaint. The former prayed to change the place of trial from the city and county of Denver to La Plata county, and for grounds set forth that this defendant has been for more than 20 years last past, and is now, a resident of La Plata county; that service of summons was made upon him in said county, as shown by the return; that the alleged contract sued upon is not specifically made payable in Denver. The plaintiff filed his answer to the motion for change of venue, setting forth that there are two defendants, and only one had made application for said change, etc. The motion for change of venue was overruled. The demurrer was also overruled. The defendant Kruschke elected to stand upon his motion and demurrer. Judgment was entered in favor of the plaintiff, and the action is here for review upon error.

The second and third grounds of demurrer were: '(2) That it appears on the face of said complaint that there is a misjoinder of parties defendant therein. (3) That it appears on the face of said complaint that there is a misjoinder of causes of action therein.' The questions raised by the demurrer are decisive of the other. It will be noted that the guaranty was executed some time after the execution of the contract, and, so far as the pleadings disclose, had no connection with it and was for a separate consideration hence the question is whether the original contract and the contract of guaranty constitute two separate and distinct contracts, to which there are different parties which and who cannot be joined in one action. There can be no question that at common law they were separate and distinct contracts; but it is urged that section 13 of our Code is authority for this action,...