DocketNumber: No. 2183
Citation Numbers: 18 Colo. App. 110
Judges: Gunter
Filed Date: 9/15/1902
Status: Precedential
Modified Date: 9/7/2022
1. Plaintiff’s cause of action was stated in two counts — one on an account for fire insurance premiums received by defendant to the use of plaintiff ; tbe other on an account stated, covering the same premiums. The first ground of defense was a denial; the second a counterclaim. The form of the denial was: “Denies each and every other material allegation of the said second alleged cause of action. ’ ’
The evidence of plaintiff tended to show that defendant was its local agent; that as such he wrote policies, collected premiums thereon and was indebted in a balance upon an account for shell collections.
Defendant offered to show in effect that at all times mentioned in the complaint a certain corporation, and not defendant, was the agent of plaintiff; that defendant was merely a stockholder in and an officer of said corporation, and that plaintiff’s claim was against such corporation and not against defend
2. The counterclaim was:
“That plaintiff entered into a written contract’ with defendant, whereby * * * the plaintiff did agree that in the event of said plaintiff’s retiring from the agency business at Denver by reinsurance or otherwise, nothing should be done to disturb the business on the books of the defendant, but * * * that it should be optional with said defendant upon notification of said plaintiff’s intention to stop doing business at Denver, to make in a reasonable time, not exceeding thirty days, either a reinsurance contract of all business of defendant in said plaintiff company * * * on terms satisfactory to said plaintiff, * _* * or to be privileged to take up all policies then in force in said company at pro rata premiums less cost of obtaining the same, as had been charged by defendant to said plaintiff in former accounts.
“And defendant says that * * * the plaintiff on * f * the 11th day of November, A. D. 1896, without-the knowledge or consent of the defend
‘ ‘ That the defendant has duly perfprmed all conditions of said contract on his part to be performed.
“By reason of the said acts and breach of said contract by the plaintiff the defendant was and is greatly injured and damaged * * * in his business, and sustained- by reason of said acts of the plaintiff great financial loss and damage and inconvenience and loss of time, to the damage of the defendant in the sum of $2,000. ’.’
Among other -defenses to this counterclaim was a denial. Defendant introduced without objection the contract sued on in the counterclaim. Also evidence
From the briefs of counsel it seems that the ruling of the court in rejecting the evidence was because the counterclaim did not state facts sufficient to constitute a cause of action. We fail to see wherein the counterclaim is so defective. It appears plaintiff agreed with the defendant that if it retired from the agency business at Denver nothing should be done to disturb the business on the books; that he should have the option of_reinsuring the business in plaintiff’s company upon his books or of cancelling the policies at pro rata rates. This was a valuable right to defendant, as it would be to any agent with business on his books. This right,- according to the allegations of the counterclaim, was violated. From the violation of .the right nominal damages .at least ensued. While we express no opinion as to what is a measure of damages in such ease, we think the lower court erred in refusing to permit defendant to introduce evidence to sustain his allegation of damage.
Judgment reversed. Reversed.