Schleier v. Bonella

• Decision Date: 02 April 1923
• Docket Number: 10518.
• Citation: 73 Colo. 222,214 P. 537
• Parties: SCHLEIER et al. v. BONELLA.
• Court: Colorado Supreme Court

214 P. 537

73 Colo. 222

SCHLEIER et al. v. BONELLA.

No. 10518.

Supreme Court of Colorado

April 2, 1923

Error to District Court, Jefferson County; S.W. Johnson, Judge.

Action by Louis Bonella against Matilda E. Schleier and others. Judgment for plaintiff, and defendants bring error.

Reversed.

Harry C. Riddle and Richard F. Ryan, both of Denver, for plaintiffs in error.

George B. Campbell, of Denver, for defendant in error.

TELLER C.J.

Defendant in error was plaintiff in an action against the plaintiffs in error for a brokerage commission on the sale of real estate and had judgment. The defendants below bring the case here on error, and ask that the writ be made a supersedeas.

The complaint alleged that the defendants employed the plaintiff to find a purchaser for 80 acres of land owned by them; that they agreed with the plaintiff that, if he would find a purchaser, they would pay him all that should be received for said land above $200 an acre; that he found such purchaser to whom the property was sold for $215 an acre; that there was therefore due the plaintiff the sum of $1,200, for which he asked judgment. The case was tried first in the county court, and there the plaintiff was allowed, over defendants' objection, to amend his complaint by adding the following:

'That the services so rendered by the plaintiff at the instance and request of the defendants are well and reasonably worth the sum of $1,200.'

The case was appealed to the district court, and there the defendants moved to strike the amendment for the reason that it was a departure from the complaint. The motion was overruled. Defendants then moved that the plaintiff be required to elect whether he would proceed upon the express contract alleged in the complaint, or on quantum meruit. This motion also was denied. Error is assigned upon these rulings as well as upon several other matters.

The plaintiff was a farmer, who had a lease upon the land in question. His testimony as to the contract was held by the trial court insufficient to establish the making of the contract pleaded.

It is plain that, under the complaint as amended, the plaintiff was allowed to make a case entirely different from that originally set up. While amendments are allowed in the discretion of the court, such amendments cannot change the cause of action. In Anderson v. Groesbeck, 26 Colo. 3, 55 P. 1086, we said:

'It is improper, over the defendant's objection, to allow an amended complaint to be filed, even though made to correspond to the proofs, when the amended pleading states an entirely new and different cause of action, as it does in this case. For this reason alone, the judgment must be reversed.'

In Anthony v. Slayden, 27 Colo. 144, 60 P. 826, we said:

'Substantial reasons other than technical rules of practice or pleading exist for affirming this judgment. If in this state, as seems to be the rule in some jurisdictions, the right to amend were absolute (which we have just denied), a plaintiff may not, against the objection of the defendant, set up a new cause of action by way of amendment; and in no case that we have found, where a plaintiff has elected one of two inconsistent remedies, has he been permitted therafter, by way of an amendment to his complaint or otherwise, to choose the other'--citing numerous cases.

To the same effect is Connell v. El Paso Gold M. & M. Co., 33 Colo. 30, 78 P. 677.

For the defendant in error it is insisted that these rulings, even though erroneous, should be disregarded, under the statutory provision which requires that we overlook any error or defect in the pleadings or proceedings, which do not affect the...