Marysville & Colorado Land Co. v. Heyde, 12889.

• Decision Date: 13 November 1933
• Docket Number: 12889.
• Citation: 93 Colo. 523,27 P.2d 498
• Parties: MARYSVILLE & COLORADO LAND CO. et al. v. HEYDE.
• Court: Colorado Supreme Court

27 P.2d 498

93 Colo. 523

MARYSVILLE & COLORADO LAND CO. et al. v. HEYDE.

No. 12889.

Supreme Court of Colorado

November 13, 1933

Rehearing Denied Dec. 4, 1933.

In Department.

Error to District Court, Adams County; Samuel W. Johnson, Judge.

Action by Dora M. Heyde against the Marysville & Colorado Land Company, a corporation, and another. Judgment for plaintiff and defendants bring error.

Affirmed.

J. Paul Hill, of Brighton, and Horace C. Skillman, Golding Fairfield Albert J. Gould, Jr., and James H. Woods, all of Denver, for plaintiffs in error.

Charles E. Compton and S. S. Abbott, both of Denver, for defendant in error.

BUTLER, Justice.

Neither the abstract nor the transcript shows any judgment in this case; hence we would be justified in dismissing the writ of error. Martin v. Way, 86 Colo. 232, 280 P. 488. However, it appears that on April 18, 1931, the court ordered that judgment be entered on the verdict; and as the case is argued here by counsel for both parties on the theory that there was a judgment, we shall proceed on that theory. If the clerk of the district court neglected to enter judgment, he should forthwith enter it nunc pro tunc as of April 18, 1931.

Dora M Heyde, called herein the plaintiff, sued the Marysville &amp Colorado Land Company and F. G. Powell, called herein the defendants, to recover possession of certain farm land in Adams county and for damages. She went into possession of the land under a contract of purchase made May 15, 1929. On or Before March 13, 1930, the defendants took possession of the land, claiming that the plaintiff had failed to make payments required by the contract. They have retained possession ever since that date. The jury found the issues for the plaintiff and awarded her damages in the sum of $4,076.40.

1. It is said by counsel for the defendants that there was a variance between the pleading and the proof. In a separate defense and counterclaim the defendants alleged a contract to sell the land to the plaintiff for $8,000, payable in installments, a failure to pay an installment of $1,500 due December 1, 1929 a notice of forfeiture, and an entry for such failure to pay. Without pleading an extension of time to pay the $1,500 installment, but under her denial of forfeiture, the plaintiff was permitted to introduce, over the defendants' objection, evidence that the defendants granted an extension of time to make that payment, and that they took possession Before the extension period expired. Assuming that this constituted a departure, it was not prejudicial to the defendants. According to the testimony in behalf of the plaintiff, the extension was granted by Powell, who was the company's president, secretary-treasurer, and agent, and who executed the sale contract in the company's behalf. Powell was present at the trial and testified that no extension was granted by him. The defendants, therefore, were prepared to meet the testimony concerning an extension as fully as though the extension had been...