Patrick v. Crowe , 15 Colo. 543 ( 1890 )

Me. Justice Hayt

delivered the opinion of the court.

The first question to be considered under the assignments of error relates to the refusal of the district judge of Pitkin county to change the venue upon appellant’s petition and affidavit. The application is based upon the alleged prejudice of the presiding judge, the Hon. T. A. Ruckbe, against the appellant. As grounds for such prejudice it is alleged, in substance:

(1) That A. W. Rucker, a brother of said judge, is one of the owners of the Celeste lode.

(2) That said A. W. Rucker is one of the attorneys of record for the defendants in this cause, and is interested in defeating plaintiff’s claim.

(3) That the feelings and interest of A. W. Rucker, and his appearance in the case as counsel, will have an influence upon the said Judge Ruckle’s judgment, to the prejudice of plaintiff’s rights.

(4) That the judge was himself an unsuccessful bidder for the lease under which both claim in this action.

(5) The recent publication of an article in a certain newspaper published at the place where the court was being held, for the purpose, as it is said, of influencing the decision of the judge in this cause.

Upon this showing plaintiff was not entitled to a change of venue as a matter of right; for, although it is alleged that A. W. Rucker was at the time one of the owners of the Celeste, it is not shown that his interest was covered by the lease in controversy, or in any way affected thereby. That he was an attorney in this case did not, of itself, render his brother, the judge, incompetent to try the action. That as such attorney he might have an influence upon the determination of the case may be admitted; and yet this influence might arise entirely from his skill in conducting the defense as an attorney, and be wholly proper. And the fact that the judge was an unsuccessful bidder for a lease upon the property would not entitle plaintiff to a change of venue. As to the newspaper article, it is not at all probable that the judge could have been influenced thereby.

We cannot, therefore, say that the matters alleged, singly or together, show that Judge Rucker was disqualified from presiding at the trial. lie was the person called upon to decide as to whether or not for any reason his judgment might be unduly influenced by the matters set forth in the petition; and, he being of the opinion that he would not be influenced by the matters stated, we cannot disturb the order overruling plaintiff’s application for a change of venue. A large discretion is lodged in the judge to whom such applications are made; and, while it cannot be said upon this record that there was error in overruling the petition for a change of venue in the case, the circumstances are such as might lead the plaintiff, and perhaps others, to question the propriety of Judge Rucker’s retaining the cause for trial before himself. As the judgment must be reversed for other reasons, we take the liberty of suggesting the advisability of calling in a judge of some other district to preside at the next trial, should one be had, unless a change of venue shall be granted in the mean time. We feel that all parties would be relieved from much embarrassment should this course be followed.

The next assignment of error is based upon the refusal of the court to permit the amended complaint to be filed. The original complaint is based upon the written contract of April 23, 1888. The amended complaint covers twenty-seven pages of the printed abstract of record, and is composed largely of evidentiary matters that have no proper place in any pleading. Discarding the probative facts as surplusage, and we find that by this pleading the written contract of April 23, 1888, is sought to be set aside, and an interest in the Crowe lease established, on the theory of a contract of partnership between Crowe and Patrick antedating the lease, and by the terms of which the lease was to be procured in the name of Crowe for the benefit of the firm.

The permitting of proper amendments is a matter within the sound discretion of the trial court, the exercise of which will only be controlled in case of abuse. If the change proposed by the amended pleading in this case could have been properly allowed at any stage in the proceeding (a point we are not called upon to decide), the refusal at the time offered was .certainly not an abuse of discretion. The cause had already been set for trial upon the following day, it having been at issue for several months. The complaint on file affirmed the written contract and asked for its enforcement. The amended complaint expressly disaffirms the written contract and sets up a prior verbal agreement contrary thereto.

The pleadings are not only inconsistent one with the other, but they are diametrically opposed to each other in all essential particulars. In the original complaint the interest of Patrick with Crowe in the lease is stated subject to forfeiture, and the plaintiff asks for relief from the forfeiture claimed by Crowe and Ellis. In the amended complaint the written instrument is sought to be set aside or reformed, so as to relieve plaintiff entirely from the forfeiture clause. By it the pleading attempts to set up a cause of action that would, if properly pleaded, have required a new answer and other and different evidence from that necessary, or even proper, under the issues as framed.

Notwithstanding the great liberality enjoined by the code in reference thereto, in practice the indulgence as to amendments must necessarily have some limit. In our opinion, the rejection of the amended complaint, under the circumstances, ivas not an abuse of discretion on the part of the trial court, and the assignment of error based thereon cannot, therefore, be sustained.

It is claimed that many errors were committed by the court to the prejudice of the plaintiff in admitting incompetent testimony against his objection, as well as in excluding competent testimony offered by him, upon the defendants’*’objection.

The first item that merits consideration relates to testimony admitted in reference to a compromise attempted between plaintiff and defendants after the dispute had arisen out of which the suit arose. A compromise was talked over between the parties, but not finally consummated. In reference to this attempted compromise the plaintiff, .while upon the witness stand, was asked by defendant this question: “What was your proposition?” to which question his counsel duly objected. This objection was overruled, and the plaintiff was compelled to give in detail his proposition to Mr. Orowe, made for the purpose of bringing about a settlement of the matters here in suit. This was clearly error. The law favors compromises. If parties can be compelled against their will, as in this case, to detail offers made for the purpose of settling matters in dispute to avoid litigation, certainly no prudent person would feel safe in offering any concessions for the purpose of bringing about a compromise. The ruling of the court below, if upheld, would have the tendency of preventing all negotiations looking to that end.

If either party had in the course of these negotiations admitted any independent fact, such admission, under some circumstances, might have been proper evidence against the party making the same to establish such fact, if material; but the testimony was not offered for such purpose in this instance, and should not have been admitted. 2 "Wharf. Ev. § 1090; Hoghton v. Hoghton, 15 Beav. 321; Perkins v. Concord Railroad, 44 N. H. 223; Gay v. Bates, 99 Mass. 263; Durgin v. Somers, 117 Mass. 55; Draper v. Hatfield, 124 Mass. 53.

Pending the negotiations for a compromise, and as a part thereof, the defendant Crowe caused to be drawn up a writing providing for the adjustment of the matters in dispute. This instrument was admitted in evidence against plaintiff’s objection, although it was never signed by either of the parties. In fact the plaintiff absolutely refused to sign or agree to it. Inserted in this writing, which is quite long, are matters very prejudicial to plaintiff’s case. In support of the ruling admitting this paper, it is claimed that, as it is shown to have been either read by or to plaintiff, he must therefore be held to have acquiesced in those matters contained therein to which he did not specifically object. As we have seen, this instrument was a part of the negotiations for a compromise. It is not shown that it was presented to the plaintiff under circumstances calling for a denial from him other than that to be implied from his withholding his signature. It was at most but an offer of compromise made by the defendant Crowe and rejected by the plaintiff. Had it emanated from the plaintiff, its admissibility as evidence might well be doubted. Originating, as it did, with the defendant, it should not, under the circumstances, have been admitted as evidence against the plaintiff. Home Ins. Co. v. Baltimore Warehouse Co. 93 U. S. 527.

The court also erred in sustaining defendants’ objection to the request of plaintiff to be allowed to cross-examine the defendant Crowe as to the conversation in which defendant states that the plaintiff made the representation that his sister-in-law was his partner for the purpose of strengthening his financial ability. The witness had previously testified that the plaintiff had represented that his sister-in-law was in partnership with him for the purpose of strengthening his financial ability; and, as it was shown that Mrs. Patrick, the person referred to as the sister-in-law, was not in partnership with the witness, the evident effect of the testimony was to cast discredit upon the plaintiff, wdio was a witness in his own behalf, and the plaintiff should have been permitted to have examined the witness fully in reference thereto.

The next objection to be considered is in reference to the question based upon the sworn answer of Crowe. In this answer the defendant Crowe denied under oath that, he advised the plaintiff that the volume of water in said shaft was surface water. The question was objected to for the reason that it did not embody the entire paragraph, of the complaint in which the language used occurs. After some discussion of counsel the court sustained this objection. This was error. As to whether or not the defendant Crowe advised plaintiff that the water in the shaft was surface water, and for this reason work should be discontinued until it disappeared, was a material question in the case. INo good reason is perceived why the witness should not have been allowed to answer the question. The statement is complete in itself, without reference to other matters that appear in the same paragraph.

Upon the whole case the evidence is quite evenly balanced, as is shown by the fact that the jury decided for the plaintiff, while the findings of the court upon the same evidence are favorable to the defendants. An examination of the record convinces us that the plaintiff did not have a full opportunity to present his case in the court below. The force of his testimony was greatly broken, on the one hand, by objections that were improperly sustained; while, on the other, the force of his cross-examination of Crowe was weakened, if not entirely destroyed in some instances, by objections without merit, that were also sustained.

Under the circumstances we are of opinion that the judgment ought not to- be allowed to stand. It is therefore reversed and a new trial ordered.

Reversed.