McMahon v. Williams

• Decision Date: 08 November 1926
• Docket Number: 11654.
• Citation: 250 P. 560,80 Colo. 249
• Parties: McMAHON v. WILLIAMS.
• Court: Colorado Supreme Court

250 P. 560

80 Colo. 249

McMAHON v. WILLIAMS.

No. 11654.

Supreme Court of Colorado

November 8, 1926

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by Nina Williams, as administratrix of the estate of Al Williams, deceased, against J. L. McMahon and Harriet A McMahon, for whom was substituted the Exchange National Bank of Colorado Springs, as administrator of her estate. Directed verdict in favor of the Exchange National Bank of Colorado Springs, as administrator of the estate of Harriet A McMahon, and judgment against defendant J. L. McMahon, and he brings error and applies for supersedeas.

Judgment affirmed, and supersedeas denied.

Orr &amp McGarry, of Colorado Springs, and Jos. R. Long, Jr., of Boulder, for plaintiff in error.

Young &amp Meikle, of Colorado Springs, for defendant in error.

ADAMS, J.

This case is here on writ of error and application for supersedeas. The names of the parties appear in inverse order from that in the trial court. Nina Williams, as administratrix of the estate of Al Williams, deceased, sued J. L. McMahon and Harriet A. McMahon, husband and wife, for work and labor performed by decedent in his lifetime on the McMahon ranch. Plaintiff alleged two causes of action--one on special contract and the other in quantum meruit. Mrs McMahon died while the action was pending, whereupon the Exchange National Bank of Colorado Springs was appointed administrator of her estate, and it was then substituted for her as a party defendant in this proceeding. When not otherwise designated, we shall refer to the parties as plaintiff and defendant, as aligned in the trial court. Our reference to the Exchange National Bank will be understood to be in its capacity as administrator of the estate of Harriet A. McMahon, deceased.

On motion of counsel for the bank, the court directed a verdict in its favor only, and the case went to the jury on the issues between plaintiff, Nina Williams, administratrix, and the remaining defendant, J. L. McMahon. Verdict and judgment was for plaintiff; defendant McMahon brings the case here; he and plaintiff are the only parties before us.

1. Defendant J. L. McMahon's answer alleges, among other things, as a defense, 'that said Al Williams, now deceased, was paid in full for all services and labor performed for the defendant J. L. McMahon.' We have here a direct admission by McMahon that the deceased did perform labor and services for him. Moreover, the plea of payment admits the original obligation, but not necessarily the entire amount claimed. Mohr v. Barnes, 4 Colo. 350; Greenlees v. Chezik, 68 Colo. 521, 190 P. 667.

In view of the above plea, it was not error to reject J. L. McMahon's offer of proof that deceased was employed by another person, defendant bank's intestate, Mrs. McMahon. On the question of hire, defendant J. L. McMahon was concluded by his plea. Greenlees v. Chezik, supra. This also coyers alleged errors concerning evidence, and also instructions on the same point, asked for by McMahon's counsel, and refused by the court, as well as the request for permission to amend the McMahon answer, also refused. He could not be allowed to amend in a way that would amount to changing an admission into a denial, over plaintiff's objection.

2. After Al Williams died, McMahon had a talk with the Williams sisters, promising payment. After the talk McMahon wrote them saying, among other things, that his attorney had advised him that they should have an administrator appointed to receive moneys, and suggesting that they go to the probate judge and have such action taken. They did so, but McMahon did not pay hence this suit. McMahon's original letter to the Misses Williams is in our court files, and is not denied. We should be compelled to summon a great deal of credulity to our assistance in order to persuade ourselves that McMahon did not hire Al Williams, since deceased, or that McMahon paid him in full, in view of this defendant's own admissions in the answer and...