Spalding v. Saltiel

• Decision Date: 07 November 1892
• Citation: 18 Colo. 86,31 P. 486
• Parties: SPALDING v. SALTIEL.
• Court: Colorado Supreme Court

31 P. 486

18 Colo. 86

SPALDING v. SALTIEL.

Supreme Court of Colorado

November 7, 1892

Appeal from district court, Arapahoe county.

Action by Emanuel H. Saltiel against John F. Spalding. Judgment for plaintiff, an defendant appeals. Affirmed.

Appellee Emanuel H. Saltiel, brought this action in the district court to recover the sum of $2,000 upon an express contract for commissions for the sale of real estate situate in the city of Denver. The cause was tried three times in the court below. Upon the first and second trials the jury disagreed. The third resulted in a verdict and judgment for the plaintiff for the sum of $2,000, from which judgment this appeal is taken.

S.C. Hinsdale, for appellant.

H E. Luthe, for appellee.

PER CURIAM.

The argument of appellant for reversal is based upon two grounds First, that the verdict is not in accordance with the law; and, second, that the verdict is unsupported by the evidence. The complaint as first filed contained two counts. Afterwards the second count was eliminated by the court, and a third count added by leave of court, so that at the trial the complaint contained but two counts. The averments show that both are founded upon the same cause of action. They are stated differently, as was a common practice at the common law, to meet the varying aspects of proof. In the court below the defendant filed his motion for judgment upon the pleadings. This motion was based principally upon the ground that the facts pleaded did not constitute a cause of action, and upon the further claim that the facts as pleaded in the separate counts were inconsistent and contradictory one with the other. This objection was renewed at the trial, before the introduction of any testimony, in the form of an objection to the introduction of testimony under the pleadings. The objection in the various forms in which it was presented was overruled by the court. These rulings are assigned for error in this court. An examination of the pleadings in this case will show that the substance of the first count in the complaint is that defendant engaged plaintiff to sell certain real estate for the sum of $100,000, promising to pay him the sum of $2,000 in case he should find a purchaser therefor, and that plaintiff undertook to and did fine a purchaser, within a reasonable time, able and willing to pay the price demanded, but that defendant refused to accept the same, and refused to either consummate the sale or pay plaintiff the stipulated commission. That a good cause of action is stated in this count, see Finnerty v. Fritz, 5 Colo. 174.

The third count contains similar allegations, with the additional averment that, after such purchaser had been procured by the plaintiff, defendant without right refused to consummate any sale upon the terms agreed upon, and revoked plaintiff's authority in the premises, to his damage in the sum of $2,000. The practice of pleading a double statement of the case, so as to meet the exigencies of the proofs, is not permitted under the Code, as a general rule. But in cases where this rule is violated, the remedy is by motion before trial, or an application at the trial for an order compelling the plaintiff to elect upon which count he will proceed. Pom Rem. & Rem. Rights, § 576; Cramer v. Oppenstein, 16 Colo 504, 27 P. 716. In no event can advantage be taken by motion for a judgment on the pleadings. The two counts stand upon substantially different foundations, so that whether the averments of one are sufficient depends in no way upon the other. Each count is...