Shoemaker v. Dickinson, 10795.

• Decision Date: 10 November 1924
• Docket Number: 10795.
• Citation: 76 Colo. 195,230 P. 606
• Parties: SHOEMAKER v. DICKINSON.
• Court: Colorado Supreme Court

230 P. 606

76 Colo. 195

SHOEMAKER v. DICKINSON.

No. 10795.

Supreme Court of Colorado

November 10, 1924

Department 3.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by Millard A. Shoemaker against Albert G. Dickinson, doing business as the American Metal Weather Strip Company. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Charles F. Miller, of Denver, for plaintiff in error.

Harold F. Collins, of Denver, for defendant in error.

CAMPBELL J.

Plaintiff in error, Shoemaker, as plaintiff below, brought this action to recover of defendant the sum of $716.87. This sum was made up of loans and advances made by plaintiff to, and of work and labor done by him for, the defendant. Included therein was an item of $100 for time and services in collecting an account due the defendant from the city and county of Denver in which plaintiff was engaged for a period of 20 days at $5 per day. The plaintiff, before the trial, by amendment to his complaint, excluded all the items of indebtedness except the one of $100. Upon the issues joined by the answer denying any indebtedness, there was a trial to the court without a jury. At the close of plaintiff's evidence the court, without hearing from the defendant, found the issues in defendant's favor and discharged the writ of attachment theretofore issued, and dismissed the action.

There was no express contract between the plaintiff and the defendant for payment of the alleged services in collecting this account. If the defendant is liable, it is as the result of correspondence between the parties. The plaintiff had acted as the agent of the defendant in selling weather strips on a commission basis, and had sold to the city of Denver weather strips to the amount of $924, and the commissions thereon due to the plaintiff were paid to him by the defendant. Thereafter the city claimed a refund of about $130, because the county jail had not been fully equipped as the contract of sale called for. The defendant wrote to the plaintiff that he would appreciate any effort he might make to reach a settlement of the account with the city. It was for plaintiff's services in attempting to make this settlement, and collecting the account due from the city, that he asks as compensation the $100 sued for. The settlement was made by giving credit to the city of the refund asked, and a city warrant for the account, less the refund agreed upon, was drawn in favor of the defendant and given to ...