Plains Iron Works Co. v. Haggott

• Decision Date: 06 November 1922
• Docket Number: 10328.
• Citation: 210 P. 696,72 Colo. 228
• Parties: PLAINS IRON WORKS CO. et al. v. HAGGOTT.
• Court: Colorado Supreme Court

210 P. 696

72 Colo. 228

PLAINS IRON WORKS CO. et al. v. HAGGOTT.

No. 10328.

Supreme Court of Colorado, En Banc.

November 6, 1922

Rehearing Denied Dec. 4, 1922.

Error to District Court, City and County of Denver; J. W. Sheafor Judge.

Suit by Warren A. Haggott against the Plains Iron Works Company and others. Judgment for plaintiff, and defendants bring error.

Modified and affirmed.

For opinion on former review, see 68 Colo. 121, 188 P. 735.

Chas. C. Barker and William H. Gabbert, both of Denver, for plaintiffs in error.

Sabin &amp McGlashan and May & Gould, all of Denver, for defendant in error.

ALLEN J.

This is a suit for specific performance of a contract to pay $10,000 in money and transfer 250 shares of stock in a corporation the Plains Iron Works Company. The cause is before us for the second time. The opinion and decision upon the first review may be found in Plains Iron Works Co. v. Haggott, 68 Colo 121, 188 P. 735. After that decision the plaintiff, as permitted by the opinion, amended his complaint, and also brought in one Asa Hubbell as a party defendant. Thereafter the trial court, sitting without a jury, found the issues for plaintiff, and rendered judgment against defendants jointly. The defendants have sued out this writ of error.

The evidence is sufficient to sustain the court's findings of fact, and for this reason it is not necessary to consider further such contentions as are based entirely on disputed facts. In this connection we observe that there is considerable discussion of the evidence tending to support the defense that plaintiff is not here with clean hands, but that issue was determined adversely to defendants as an issue of fact.

The defendants plead res judicata. The plea is based on the former opinion of this court as to the sufficiency of the evidence to support any judgment against the Iron Works Company. This court, however, did not direct or order the direction of any judgment in favor of the company, but the cause was remanded for new trial, and plaintiff given leave to amend or replead. As permitted by the opinion, the cause was retried as to all issues. This court did not direct the retrial of certain specific questions of fact only, as may sometimes be done under rule 53 (161 P. xii). Therefore the trial court properly proceeded to determine all issues of fact, without reference to what was said in the former opinion as to the sufficiency of the evidence on any issue. The plea of res judicata cannot be sustained.

Error is assigned to the trial court's refusal to grant defendants a trial by jury. In Neikirk v. Boulder Bank, 53 Colo. 350, 355, 127 P. 137, 139, this court said:

'Under our Code, whether an issue of fact must be tried by a jury depends upon the character of the action in which the issue is joined.'

We hold the instant case to be a suit for specific performance, not only because we have so indicated in the former opinion but also upon a consideration of the allegations of the amended complaint and the relief demanded. A suit for specific performance is an equitable action, and being such, it is triable to the court without a jury. Johnson v. National Bank, 24 Colo.App. 23, 131 P. 284; Cree v. Lewis, 49 Colo. 186, 112 P. 326; McClelland v. Bullis, 34 Colo. 79, 81 P. 771.

The plaintiffs in error, however, further claim that the suit, in so far as the stock is concerned, is an action for the recovery of specific personal property, and therefore must be tried by a jury under section 190, Code of 1908, which requires such actions to be tried by a jury, unless a jury trial is waived. While the recovery of specific personal property may result from the successful prosecution of a suit for specific performance of a contract to transfer such personal property, the suit, nevertheless, is not one 'for the recovery of specific personal property,' within the meaning of the Code. In Hull v. Bell, 54 Ohio St. 228, 43 N.E. 584, it was held that a suit for specific performance of a contract to convey land is not an action for the recovery of land, within the meaning of a code provision like ours. See, also, 24 Cyc. 109. In 24 Cyc. 123, the text is to the effect that suits for specific performance are, even under the Codes of Procedure, triable by the court without a jury. There was no error in denying defendants a trial by jury.

Error is assigned to the trial court's overruling defendants' objection to the admission in evidence of testimony given at the first trial by witnesses who were absent from the state at the time of the last trial; that is at the time the former evidence was sought to be used. The objection was upon three, and only three, grounds, and these were: (1) An alleged lack of diligence to procure the attendance of the absent witnesses. (2) That no effort was made to obtain their depositions. (3) That there was not an identity of issues at the two trials. There was no objection on the ground that there was not an...