Anderson v. Dailey , 25 Colo. App. 175 ( 1913 )

Cunningham, Presiding Judge.

Dailey, the appellee, filed his suit in the district court against The Friday Mining and Leasing Company, and Phillip Schuch Junior, to recover for services which he alleged that he had performed for the defendants at their special instance and request. The mining company made no appearance. Schuclf answered a general denial. Judgment went against the mining- company for $678, and against Schuch for $535 — a verdict having been rendered for these amounts. After judgment was rendered by the lower court Schuch died, and Anderson, his administrator, was substituted .as appellant.

There is hut a single -question presented for our determination, viz., was Dailey employed by Schuch, or was the latter simply a guarantor? If a guarantor, Schuch cannot be held liable under the pleadings, since it is conceded, as indeed it must be, that the complaint was.upon the common count, and charges a joint liability on the part of the defendants, and the trial court instructed that:

‘ ‘ To entitle the plaintiff to recover a verdict at your hands against the defendant, Schuch, he must satisfy you hy a preponderance of the evidence that the defendant Schuch employed him and agreed to pay him and not that the defendant Schuch guaranteed the payment of the indebtedness of the Friday Mining and Leasing Company.”

There can be no question but that the services rendered by plaintiff were performed upon mining property belonging to the mining company — a corporation — and operated by it. Schuch was an officer and stockholder of the company, and appears to have had general charge of its mining operations. It is also certain that Schuch frequently, from time to time, urged Dailey to remain at work on the property, and assured him that he (Schuch) would see that he got his money — his wages. These assurances were made orally and by letters, and were couched in language, at times, indicating that he (Schuch) would see that the company paid, and at other times indicating that he (Schuch) would pay from his own funds. Schuch’s assurances that the company would be in funds and pay cannot, of course, create any personable liability against him.

But two witnesses were called — Dailey and Schuch. Schuch’s testimony was unequivocal that he (Schuch), acting as the representative of the mining company, employed Dailey for that company, and that he never employed him personally. While there are certain phrases or sentences in Dailey’s testimony which might bear the construction that he was employed by Schuch, to work for him personally, still, when fairly considered, his own testimony establishes quite the contrary. For instance, Dailey testified that Schuch

“Told me the company were doing the best they

could to raise money, but that he would pay me what was owing me himself. ”

He also testified that:

44 $952.50 is due me from the Friday Mining and Leasing Company. ’ ’

And again:

4 41 was working for the Friday Mining and Leasing Company. Schuch said he would guarantee the money.” Plaintiff introduced a letter from Schuch to himself, containing the following:

4 4 After our telephone talk this morning I have decided to write you a statement in full, so that you may assure all the men to whom some money is due (Dailey appears to have been foreman at the mine) from the Friday Mining and Leasing Company, that I will personally see that they get every cent that is due them within a very few days. I have got sufficient subscriptions to make good, and I will have money in the company’s treasury, and I shall also request the secretary and treasurer to issue the checks as soon as the money comes in, until all accounts are joaid.”

And in another letter, which was put in evidence, Schuch writes Dailey .as follows:

4 4 You can rest assured, and can assure the men, that I will stick to them and see that they get their money, even if I have to sacrifice my personal property to make up the company’s affairs, which have been entrusted to my care.”

If Schuch had employed Dailey personally, and personally obligated himself to pay, there could have been no occasion or justification for any assurances from Schuch that he would pay him,4 4 even if he had to sacrifice his personal property to make up the company’s affairs. ” These letters make it clearly apparent that Schuch did not regard himself as obligated in the first instance to Dailey by any contractual relation. That Dailey understood that he was employed by the mining company, and was working for it, and not for Sckuch, is equally apparent, not only from what we have already quoted from his testimony, but from the further fact that all payments which he received for his wages were made by company checks, and his time-book, kept by himself, was headed: “Services rendered for the Friday Leasing Company,” and all bills were rendered by him to the company. Indeed, not until he filed his complaint did he ever, so far as the record indicates, intimate that he had any legal right to look to, or claim upon, Schuch for his wages. It is possible that there may have been a very short period of time'when, under the most favorable construction of the evidence, Schuch may have become personally and directly responsible to Dailey, but if so, the time covered by such change in the relationship, if there was any change, was short, and the amount earned under it small.

As we have said, the sole question is, can Dailey, on a complaint on the common counts, averring that Schuch employed him jointly with the company, to work for him (Schuch) and the company, recover where the proof clearly shows there was no such employment at all, and that at most Schuch was a guarantor only? This question must be answered in the negative, if pleadings are to cut any figure whatever in a case. To rule otherwise would be as flagrant a violation of all rules of pleading as to permit one who has sued in tort to recover on quantum meruit, if the proof chanced to show defendant not guilty, but that he owed plaintiff for services performed. Against a complaint charging liability as a guarantor, Schuch may have been able to successfully plead the statute of frauds, though we do not so decide. Counsel for appellee suggest in their brief that defendant did not plead the statute of frauds as a defense, but denied generally. There are two sufficient answers to this suggestion, viz.: 1. Sehuch’s right to have this judgment reversed in no manner rests upon the statute, hut upon a fatal variance between the pleadings and the proof. 2. A defendant is not required to plead the statute,

“Where the plaintiff sues on the common count, and therefore, does not disclose the foundation, of his case until he puts in his evidence.” — Brown’s Statute of Frauds (5th Ed.), sec. 508; Durant v. Rogers, 71 Ill., 124-5; Solomon v. McRae, 9 Colo. App., 26, 47 Pac., 409.

Much as we dislike to disturb the judgment of a trial court, or reverse judgments for errors pertaining to pleadings, no alternative is left us, since it cannot be said that the substantial rights of the defendant were not prejudiced by the errors to which we have called attention. The trial judge should, have sustained the motion for a directed verdict interposed by defendant at the close of plaintiff’s testimony.

Judgment Reversed.