Wells v. Crawford

• Citation: 23 Colo.App. 103,127 P. 914
• Parties: WELLS v. CRAWFORD (BUCHANAN, Intervener).
• Decision Date: 11 November 1912
• Court: Colorado Court of Appeals

127 P. 914

23 Colo.App. 103

WELLS v. CRAWFORD (BUCHANAN, Intervener).

Court of Appeals of Colorado

November 11, 1912

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by L.C. Crawford against Carson Wells, in which Max Buchman intervened. From a judgment for plaintiff, defendant appeals. Affirmed.

Erastus W. Smith, of Denver, for appellant.

Melville Sackett & Calvert, of Denver, for appellee and intervener.

MORGAN J.

This appeal is from a judgment in favor of plaintiff, Crawford against defendant, Wells, in the lower court, in an action on a written contract, expressing an agreed compensation, for a balance due for certain grading work. It also involves a cross-complaint for damages claimed by the defendant for completing the work that he claims should have been done under the contract; also a cross-complaint for the value of some live stock which the defendant claims were not returned to him by the plaintiff, and which the testimony shows the plaintiff had hired from him. Trial without a jury. Reversal asked for on five distinct propositions, following:

1. Appellant strenuously contends in this court that there is a variance between the pleadings and the proof; that the action is on a written contract for an agreed compensation, while the evidence discloses an abandonment of the contract and an attempt to recover for the reasonable value of the services, or damages for a breach of the contract. It has been held in this state, upon a record that discloses prompt objection and resistance, that where a complaint states a cause of action upon an express contract the complainant cannot be permitted, without amending the complaint, to recover upon a breach of the contract, or upon the reasonable value of the services performed, on account of the material variance between the pleadings and the proof. Rockwell Stock Co. v. Castroni, 6 Colo.App. 528, 534, 42 P. 182. But in the case of Buckingham v. Harris, 10 Colo. 455, 461, 15 P. 817, following the case of Sussdorff v. Schmidt, 55 N.Y. 320, under a complaint to recover upon an alleged agreed compensation for services, it is held that such variance between the pleadings and the proof should be disregarded, if it appear that the defendant was not misled thereby, and that substantial justice resulted. However, there is no substantial variance in this action on account of the reasons assigned by the appellant, although there is some reason to contend there is a variance because of some statements in the plaintiff's evidence that show a possible disposition to prove an excuse for not fully performing the contract, which she alleges was fully completed. Omaha Consolidated Vinegar Co. v. Burns, 44 Neb. 21, 62 N.W. 301; Pomeroy's Code Remedies (4th Ed.) § 409. The appellant, however, never claimed a variance, so far as the record discloses, in the lower court, and, in fact, never objected to the introduction of any testimony at any time, never asked for a nonsuit, never claimed in the motion for a new trial that there was a variance, but introduced testimony solely for the purpose of showing that the plaintiff never completed the contract, and this seems to have been the principal issue at the trial. So, if there is a variance at all, the defendant, who now appeals and complains of it, disregarded it himself in the lower court, and it ought to be disregarded on this appeal. King v. De Coursey, 8 Colo. 463, 9 P. 31; Merritt v. Hummer, 122 P. 816, 819. Furthermore, our Supreme Court has held that "a variance that neither surprises nor harms a party is not necessarily fatal to the judgment." Doland v. Grand Valley Irrig. Co., 28 Colo. 150, 63 P. 300. The defendant seems not to have been taken by surprise, as it appears from the record that the lower court was not notified in any way that any objection was made or would be made concerning the variance now complained of. It is true the defendant, in his motion for a new trial, among 14 other grounds, states that the judgment ordered to be entered is not supported by the evidence; but this would not, in itself, be sufficient to call the court's attention to the variance now complained of. Merritt v. Hummer, supra.

There is considerable conflict, also, in the testimony as to whether the contract was completed, and, as the lower court must have found that it was completed, such finding would dispose of the variance complained of; and in accordance with this general rule and the reasons heretofore given the judgment of the lower court will not be disturbed.

2. The appellant also contends that because the plaintiff had assigned to a third party an amount, to the extent of $3,700 out of the money that might become due on the work, she is not the real party in interest, and cannot sue in her own name. This defense is stated in the answer in a correct way, and at the proper time, claiming that it is an assignment of all the money due on the contract. The provision of our Code that "every action shall be prosecuted in the name of the real party in interest" has been under consideration by this court and our Supreme Court in the following cases examined: Gomer v. Stockdale, 5 Colo.App. 489, 39 P. 355; Hall v. Allen, 46 Colo. 355, 104 P. 489; Hipp v. Spencer, 48 Colo. 433, 109 P. 1109--and the weight of authority is in accordance with the opinion in Gomer v. Stockdale, just cited, especially as to the right of an assignee to sue in his own name. The authorities are not so numerous nor so positive when it comes to the question of the right of the assignor to sue after an assignment has been made of all or a part of the claim sued upon. The better rule is, as intimated in Hall v. Allen, supra, that if the assignor has not parted with the legal title, or has not assigned the entire claim, and disposed of all his rights in it by complete sale or otherwise, he can still maintain an action in his own name, leaving the assignee to assert his interest...