(Download) "Capra v. Local Lodge No. 273" by Colorado Supreme Court * eBook PDF Kindle ePub Free
eBook details
- Title: Capra v. Local Lodge No. 273
- Author : Colorado Supreme Court
- Release Date : January 21, 1938
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
As the principal ground for reversal plaintiff in error asserts that since the second cause of action was upon an alleged joint contract, which the evidence shows was oral, the judgment must be against all the defendants or none; consequently it was improper to enter judgment in favor of one defendant and against the other. As supporting this position he relies upon the cases of Townsend v. Heath, 106 Colo. 273, 103 P.2d 691, and Whitescarver v. Waldo, 69 Colo. 356, 194 Pac. 618. Defendant in error asserts that the judgment against one defendant alone was authorized by sections 242 and 243, Code of Civil Procedure, and cites Duncan v. Capehart, 40 Colo. 446, 90 Pac. 1033, and East v. McClung, 49 Colo. 502, 113 Pac. 517, as supporting his assertion. The common-law rule undoubtedly is in accordance with the contention of plaintiff in error. 33 C.J., p. 1111, § 65, citing Bissell v. Cushman, 5 Colo. 76. Concerning the effect of the mentioned code sections, on this common-law rule, we said in Duncan v. Capehart, supra; "Our former decision in this cause was that the common-law rule still prevailed, but on a rehearing, and after elaborate argument and further investigation, a majority of the court think that this conclusion is wrong, and that by virtue of the above and other code provisions, the rule of the common law has been abrogated, and that, in a suit upon a contract, alleged to have been entered into by several defendants, when the proof sustains the contract in all respects, except that the liability of only one or more of the defendants is established, judgment may be rendered against such defendants, and in favor of the defendants against whom no liability is shown. This is the view taken by a large majority of the courts in states having the same, or like, statutory provisions." See, also, 33 C.J., p. 1115, § 68.