Briggs v. Bruce , 9 Colo. 282 ( 1886 )

Beck, C. J.

The first error assigned is the refusal of the court to dismiss the action as to all claims, except the sum of $26, on account of the failure of the plaintiff to reply to the second and third defenses. The effect of plaintiff’s failure to reply to the answer was to admit as true the averment of the payment by the defendant of the sum of $50 on account of the indebtedness mentioned in the complaint. Sections 75 and 76, Civil Code; Bliss, Code PI. § 396. Upon the pleadings as they stood at the time the motion to dismiss was interposed, there was due the plaintiff the sum of $26, together with interest thereon from December 20, 1881. The motion should have been allowed and judgment entered for the said sum, together with interest and costs, including the sum paid for making and recording the lien claim.

The payment of the $50 was admitted by the plaintiff in his testimony. .The error of the court, therefore, was in allowing any part of the claim for services not sued for, viz., the claim for extra work. That a portion of that claim was allowed is evident from the amount of the judgment. No such claim was mentioned in the original complaint, and the amendment allowed at the trial either did not embrace the same or the amendment was not made, as no claim for extra work appeal's in the transcript of the complaint before us. Leave to amend a pleading is of no effect unless the order is complied vrith. Haynes, New Trials, p. 169, § 57; Kimball v. Gearhart, 12 Cal. 46.

The amendment which was permitted to be made is set out in the transcript at folio 24 and is as follows: “ The court ordered that plaintiff have leave to'amend said complaint by interlining in the original complaint an averment that there was a cause of action on specific contract for work on a building for the sum of $75.” Following this order the record states: “And the defendant then and there stipulated that he would waive all exceptions to the form of the two counts in the complaint as amended.” Leaving out of view the question whether an amendment granted upon the trial, embracing a claim for extra work, would introduce a new cause of action, the record fails to show that any such amendment was either prayed for or ordered to be made. The complaint makes no mention of extra work and contains no charge for any work other than that contracted to be performed for the sum of $75. If the plaintiff’s theory be that the $50 paid by the defendant was in settlement of the extra labor, he is estopped from setting up such application of the payment by his failure to file' a replication to defendant’s answer.

As the judgment proper exceeds the amount due on the contract, allowing interest as claimed, it is hereby reversed and the cause remanded, with directions to the court below to enter judgment in conformity with the views expressed in this opinion. Judgment reversed, with costs. Reversed.