Taylor v. Buckley , 3 Colo. App. 79 ( 1893 )

Reed, J.,

delivered the opinion of the court.

Appellee was employed by appellant to perform labor on a ranch ; was a carpenter. There was no question in regard to the emplojunent and the price for mechanical labor —it was to be $50.00 per month. Appellee was to repair wagons, tools and farming machinery ; also to do some building, and repair buildings, etc. Appellant was to furnish lumber and. materials; employment commenced July 2d or 5th, terminated October 5th. A part of the time appellee was engaged in mechanical work, and a part of the time in haying and harvesting and ordinary ranch labor, — appellant failing to furnish lumber and material. The only question of importance was as to the contract of hiring; appellee claiming $50.00 per month regardless of the character of the work upon which he was employed, appellant contending that he was only to receive $50.00 per month for carpenter’s work, and the price of ordinary ranch labor while otherwise employed. Upon this question the testimony was conflicting, but the finding was for appellee; verdict and judgment for $155. There was a claim made and an attempt to recover for expenses and time in coming to Denver after the employment was terminated. No such claim could be allowed, and it seems to have been ignored by the jury. The time testified to at $50.00 per month covers the amount of the verdict. The price allowed by the jury appears excessive for the character of the employment and the manner in which the party was occupied, but the question was purely one of fact, which it was the province of the jury to determine, and according to the well-settled rule of this court will not be disturbed. If it were within the province of this court, the fact might have been differently found, and a more equitable judgment entered.

Various errors are assigned, principally upon the admission and rejection of evidence. A careful examination fails to disclose any serious error. No error is assigned upon the court’s instructions to the jury. Proceedings by attachment were instituted, a traverse, and an issue which was by the court submitted to the jury for a separate finding. The issue was found for appellee. It is contended that the action of the court submitting the question upon the attachment for separate finding by the jury was erroneous. We do not so regard it. It has been held by the supreme court, and this, to be the correct practice. If erroneous, no exceptions appear to have been taken to the action of the court, nor any objection made to the proceeding at the time, consequently, it cannot be reversed here.

The judgment should, be affirmed.

Affirmed.