Teller v. Ferguson

• Decision Date: 22 June 1897
• Citation: 24 Colo. 432,51 P. 429
• Parties: TELLER v. FERGUSON.
• Court: Colorado Supreme Court

51 P. 429

24 Colo. 432

TELLER v. FERGUSON.

Supreme Court of Colorado

June 22, 1897

Appeal from district court, Arapahoe county.

Action by John A. Ferguson against John C. Teller. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff in his complaint alleges that in the month of August, 1892, and for some years prior thereto, the defendant was engaged in the business of furnishing ties to the Union Pacific Railway Company under a five-years contract; that the defendant employed plaintiff in August, 1892, to assist him in carrying out the contract; and that by the terms of such employment the plaintiff agreed to keep an account of all ties inspected at various points along the line of the Union Pacific Railway, and that his compensation therefor should be one-sixth of the net profits which should thereafter accrue to the defendant under said contract with the railway company. It is further alleged that the plaintiff entered into and continued in the employment of the defendant, under said contract, from the 12th day of September, 1892, to and including the 31st day of May, 1894. The plaintiff avers that the net profits derived by the defendant from his contract as aforesaid, during the dates last mentioned, amounted to the sum of $82,976.46. It is further alleged that an account was stated between the plaintiff and defendant on the 1st day of June, 1894; and it was then found that after allowing the plaintiff credit for one-sixth of the net profits, and deducting therefrom all advances made to plaintiff, there was due from the defendant to the plaintiff a balance of $7,173.55. It is alleged that the defendant has not paid the plaintiff such balance, nor any part thereof; wherefore plaintiff prays judgment for the balance so remaining unpaid. To this complaint an answer was filed in which the defendant admits the employment of plaintiff as stated in the complaint; admits the compensation agreed upon to be as stated in the complaint; but denies that the defendant ever agreed to pay plaintiff such compensation. Further answering the defendant alleges that, at the time of making the contract, the plaintiff was related to the defendant, in this: the wife of the defendant was a half-sister of plaintiff; that the father of the plaintiff, James F Ferguson, was a man without means, having a family of three daughters in addition to said son, John A. Ferguson; that the father and daughter were without any means of support except as received from said John A. Ferguson, or from contributions received before that time, and then being made, to their support by the defendant; and that it was specially agreed in the contract that one-half of the one-sixth of the net proceeds which was to constitute plaintiff's compensation was to be paid to the said James F. Ferguson for his use and benefit and that of his daughters. Defendant alleges that his contract with the plaintiff was for the purpose of giving plaintiff an opportunity to get a start in money matters and, further, to relieve the defendant from any obligation either moral or legal, to provide for the maintenance of James F. Ferguson and his family. The defendant, further answering, says that the plaintiff has received out of the net proceeds derived from the contract the sum of $7,980.09, which is an amount greater than that due him under said agreement. The defendant avers that he is not now in any manner indebted to the plaintiff. The defendant, further answering, says that he had paid out, at the instance and request of plaintiff and for his use and benefit, various amounts, aggregating about $400. The plaintiff filed a demurrer to this answer, but afterwards withdrew the same, substituting a replication therefor. The replication admits that plaintiff owes for the items specified in the answer, at the rates charged. All other matters in the answer are denied. Upon these issues the cause was tried to the court and jury. The trial resulted in a verdict and judgment for the plaintiff for the sum of $7,335.18. To reverse this judgment the defendant brings the case here by appeal.

Teller, Orahood & Morgan, for appellant.

Thomas Ward, Jr., and Thomas Mitchell, for appellee.

HAYT C.J. (after stating the facts).

In the arguments before this court, both oral and written, the decision of the trial court that the burden of proof was upon the plaintiff, and that he was for this reason entitled to open and close the introduction of evidence and the arguments to the jury, is the question to which counsel have given their principal attention. The record shows that before the introduction of any testimony the defendant moved the court to be allowed 'the opening and closing arguments,' which motion was denied, and the ruling of the court duly excepted to. It does not appear that defendant thereafter renewed such application until after the verdict of the jury was returned, but in his motion for a new trial the refusal of the court to allow him 'the opening and closing in this case' is given as a ground of error. Plaintiff contends that the ruling of the court in this regard is free from error--First, for the reason that the defendant, in the first instance, asked only to be allowed the opening and closing arguments, and did not specifically ask to be allowed to open and close the case; second, that, if he had claimed the right to open and close the case, this could not properly have been sustained, as under the issues the burden of proof was upon the plaintiff, and that he (plaintiff) was consequently entitled to open and close. Strictly speaking, the motion should have been for permission to open and close the case, instead of for the 'opening and closing arguments,' the arguments being merely incidental to the right to so open and close the evidence; but, for the purposes of this review, we shall treat the motion made as sufficient to raise the question of the burden of proof.

The plaintiff in his complaint avers that he performed certain services under a contract with the defendant by the terms of which the defendant became indebted to plaintiff, etc., and that after the services were rendered an account was stated between them showing a balance 'due from the defendant to the said plaintiff of $7,173.55.' The defendant admits the contract as stated by plaintiff, admits that he owes the amount, but denies that he owes it to plaintiff, and alleges that it is payable to plaintiff's father, James F Ferguson. In other words, the defendant admits the plaintiff's cause of action, with the exception of the accounting, and that the unpaid balance was due plaintiff; but he did not admit the whole of plaintiff's case. The plaintiff avers that this balance was due him. The defendant says, in effect, that it was not due the plaintiff, because, by the terms of the contract, it was expressly made payable to plaintiff's father. This answer is in the nature of an argumentative denial. The same facts could have been shown under a general denial. Under a general denial, the burden of proof is always upon the plaintiff, and the form in which this denial is made in this case did not shift the burden. The defendant claims that this answer was framed for the purpose of giving him the opening and closing of the case, but the substance and effect of the issue is more to be regarded than the mere form of the pleading. 1 Greenl. Ev. § 74. The case, as made by the pleadings, in its essential particulars is quite similar to that of Field v. Knapp, 108 N.Y. 87, 14 N.E. 829. In that case the plaintiff alleged that an account...