McQuown v. Cavanaugh

• Decision Date: 28 February 1890
• Citation: 14 Colo. 188,23 P. 341
• Parties: McQUOWN v. CAVANAUGH.
• Court: Colorado Supreme Court

23 P. 341

14 Colo. 188

McQUOWN v. CAVANAUGH.

Supreme Court of Colorado

February 28, 1890

Commissioners' decision. Appeal from Arapahoe county court.

J W. Horner, for appellant.

J W. Mullahey, for appellee.

RICHMOND, C.

In this action plaintiff below and appellee here sought to recover for work and labor performed, a balance due, amounting to $95.37. It appears from the record that the plaintiff was in the employ of George L. McQuown, and that McQuown had agreed to pay him the sum of $3.50 per day; that he worked for McQuown until September 21, 1884, when McQuown made an assignment, and the appellant, Lowena McQuown, wife of George L. McQuown, purchased at sheriff's sale the stock, and continued the business in her name, with George L. McQuown as her agent; that plaintiff continued to labor for Mrs McQuown, charging the same price per day for such labor which was paid. Subsequently a receiver was appointed, and there was a balance due plaintiff, which the receiver was authorized to pay; that plaintiff charged in his bill for his labor, $3.50 per day, and George L. McQuown approved and certified the account, which was paid, that thereafter Mrs. McQuown resumed business, and plaintiff continued in her employ for some length of time, claiming the same rate per day, but defendant only allowed $3 per day. It is contended by appellant that the contract with George L. McQuown, of $3.50 per day, was not binding upon her, and that plaintiff's services were only reasonably worth the sum of $3 per day. Several witnesses testify, in behalf of defendant, to the effect that the usual rate of wages for such labor is $3 per day. The cause was tried to the jury, and verdict in favor of the plaintiff, assessing his damages at $95.37.

But two propositions are submitted or discussed by appellant. First, that the court erred in permitting the plaintiff to testify to the contract with George L. McQuown made prior to the time that Mrs. McQuown succeeded to the business. We do not think this proposition tenable, for the reason that it is admitted that George L. McQuown was acting as the agent of Mrs. McQuown, and continued the employment of plaintiff, and continued to pay plaintiff the same rate per day he had previously contracted to pay; and at no time did McQuown, while so acting as agent, directly or indirectly intimate to plaintiff a change in the terms of the contract. On the contrary, his act as agent, in continuing payment under the contract, was the act of his principal. Mrs. McQuown; thus rendering the testimony relative to the original contract admissible to show the terms of his employment, after she succeeded to the business.

The second and...