Tucker v. Parks

• Decision Date: 01 April 1884
• Citation: 7 Colo. 62,1 P. 427
• Parties: L. R. TUCKER, Sheriff, etc. v. DANIEL E. PARKS, Assignee.
• Court: Colorado Supreme Court

1 P. 427

7 Colo. 62

L. R. TUCKER, Sheriff, etc. v. DANIEL E. PARKS, Assignee.

Supreme Court of Colorado

April, 1884

Appeal from district court of Lake county.

R. D. Thompson, for appellant.

Markkam & Patterson, for appellee.

BECK C.J.

The objection to the introduction in evidence of the articles of assignment was not well taken. It was that the assignee was an attorney at law, and that the instrument provided for the payment to him of counsel fees. The fact that Parks was an attorney at law did not disqualify him from acting as the assignee of an insolvent firm. In the case cited in support of the objection, ( Nichols v. McEwen, 17 N.Y. 22), the assignment provided for the payment of 'a reasonable counsel fee' in addition to the 'expenses, costs, charges, and commissions' of executing the assignment, and for that reason was held void. The court regarded the attempt to charge an already deficient fund with a counsel fee in addition to the regular commission authorized by the statute, as indicating a fraudulent intent in the whole transaction. The language of this instrument is different, however, and does not, we think, attempt to charge the insolvent estate with counsel fees. It is as follows 'That said assignee shall first pay and disburse all the just and reasonable expenses, charges, costs, and commissions attending the due execution of these presents, and the carrying into effect the trust thereby created, together with a reasonable compensation or commission for his own services.'

No allusion is made to either professional services or to professional fees. All that the instrument authorizes the assignee to pay to himself for his own services is a reasonable compensation or commission. This provision descloses no fraudulent intent since the assignee, whether lawyer or not, would be entitled to a reasonable compensation or commission for the services specified, which is all that is provided.

The most important questions presented by this record arise upon the pleadings, and upon the rulings and instructions relating to the subject of the recovery. The complaint avers that the value of the goods seized upon the writs of attachment is $7,946.20, and that the plaintiff's damages for the detention are $1,000. Neither of these allegations is denied by the answer of the defendant. The plaintiff closed his testimony, on the trial, without offering proof in support of either averment, whereupon defendant moved for a nonsuit upon the ground that the plaintiff had proved no value to the property sought to be replevied. This motion was denied by the court on the theory that defendant's failure to controvert, in his answer to the complaint, the allegations of value and damages, admitted the same to be true as stated. Defendant then offered evidence to show the value of the goods, their condition, and the amount realized by their sale under the attachment proceedings, which offer was likewise denied. The court instructed the jury that the value of the goods in controversy was admitted by the pleadings to be $7,946.20, and the damages were likewise admitted to be $1,000. A verdict for the plaintiff was returned accordingly.

Counsel for the defendant insist that the court erred in denying the motion for nonsuit, in rejecting the defendant's testimony on the subject of value, and in the instruction referred to. The correctness of the above rulings depends upon the construction to be given certain sections of our Code of Civil Procedure, which we will proceed to consider.

Section 57 provides that 'the answer of the defendant shall contain a specific denial to each allegation in the complaint intended to be controverted by the defendants answer.'

Section 72 says: 'Every material allegation of the complaint or answer, not controverted by the answer or replication thereto, shall, for the purpose of the action, be taken as true.'

On behalf of the appellant (who was defendant below) it is insisted that the averments of the complaint on the subject of value and damages are not 'material allegations,' and that a failure to deny them does not admit them to be true. That to entitle the plaintiff to recover in this action, it was essential for him to prove the value of the goods, and the amount of damages sustained. In support of this position we are cited to the following cases: Newman v. Otto, 4 Sandf. 668; Sopris v. Webster, 1 Colo. 507; Connoss v. Meir, 2 E. D. Smith, 314; Jenkins v. Steanka, 19 Wis. 126.

The doctrine of these cases is shown by the following citations from Newman v. Otto: 'No allegation can be deemed material unless an issue taken upon it will decide the cause, so far as relates to the particular cause of action to which the allegation refers. * * * In an action sounding in damages, the defendant, by not denying the allegations as to damages and as to their amount, does not admit them. The plaintiff must prove the amount thereof, or he will only be entitled to nominal damages; so, in trover, a failure to deny the allegations as to the value of the property, does not admit the value as alleged in the complaint.' The case of Connoss v. Meir, supra, was an action in the nature of trover, for illegally detaining the plaintiff's watch, alleged to be of the value of $20. In considering the section of the New York Code, which provides that material allegations of the complaint not denied by the answer shall be taken as true, for the purposes of the action, the court say that the provision is but the re-enactment of a rule as old as the principles of pleading that every allegation in a pleading was always taken as true if not denied, and that it was in this sense that the term, 'material allegation,' was used in the Code. It means an allegation without proof of which the plaintiff must fail in his action. They also say that, before the Code, the averment of value in such action was matter of form, and could not be made the subject of an issue; that its omission was cured by pleading to the merits; that it need not be proved as laid, and even a plea of justification did not admit it. It was only necessary to prove an illegal detention of the plaintiff's property to maintain the action. In Jenkins v. Steanka, supra, the supreme court of Wisconsin held that, before the Code, in that state it was not necessary for the defendant in trover, trespass, or replevin to deny either the averment of value or damages, and that the Code had not altered the practice in this respect. Sopris v. Webster arose under the common-law practice which prevailed in the territory of Colorado before the enactment of the Civil Code, and is to the same effect.

The foregoing adjudications (and many more of the same tenor might have been cited) are based upon the principles and forms of pleading as they existed at common law. All save Sopris v. Webster, which was prior to the passage of the Code, construe the Code provision under consideration as not including allegations of value or damages in actions of this character. They held that the effect of a failure to deny such allegations is the same under Code practice as under the old system. This is to be accounted for in part for the reason assigned in Newman v. Otto, supra, that the Codes referred to had not defined the meaning of the term, 'material allegations,' as employed therein. Its former technical signification was therefore naturally continued by the courts. Our Code, however, defines the term, and effect must be given the definition in construing the act. The definition is as follows:

Sec. 73. 'A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient.'

Another section authorizes matters not essential to the claim or defense to be stricken from the pleadings on motion. Laws 1879, p. 215, § 1.

Let us see now what the plaintiff is required to state in this class of actions, and what relief he is entitled to under proper allegations. When he seeks the recovery of money or damages, the amount of his claim must be stated in the complaint. Civil Code, § 50. The plaintiff always seeks this kind of relief in replevin, when the property has not been delivered to him, as in the case at bar. In such case the jury is required, by section 182, to find the value of the property and to assess the plaintiff's damages, if any are claimed in the complaint. To complete the remedy, section 207 authorizes judgment in the alternative for possession of the property, or, in case a delivery cannot be had, for the value of the property and damages for the detention.

This is the relief demanded in the present action. Both the value of the merchandise taken and the amount of damages alleged to have been sustained by their detention, were stated in the complaint, the same being the allegations which appellant says were immaterial and could not be admitted by a failure to deny them in the answer. Testing their materiality by the rule furnished by the Code, the inquiry is, were those allegations essential to the plaintiff's claim, and could they be stricken from his complaint without leaving it insufficient?

The record shows that the goods were sold by the defendant by virtue of the attachment proceedings; hence, they could not be returned. The plaintiff then could have no relief in this action, save by a verdict and judgment authorizing the collection of their value in money and damages....