SHOWING CONTRACT AN ORIGINAL UNDER-
TAKING.

In an action for labor and money furnished, evidence held to show that defendant promised in his own name to pay for services to be done for another, and that same was an original undertaking.

3. CONTRACTS 74-SERVICES FOR BENEFIT OF THIRD PERSON SUFFICIENT CONSIDERA

TION.

"That there is no contract of employment established between the defendant, Anderson, and the plaintiff, Spelts, and for the further reason that any testimony introduced in the case at this time would simply be tending to establish a contract which is void under our statute of frauds, there being no memorandum in writing."

It appears to have been the theory of the defendant, in interposing the motion, and of the trial court in sustaining it, that the contract, which the evidence for the plaintiff tended to establish, was void under section 2666, R. S. 1908 (section 3065, M. A. S. 1912), which, so far as material here, reads as follows:

"In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party charged therewith:

"Second.-Every special promise to answer for the debt, default or miscarriage of another person."

The plaintiff, on the other hand, contends that the agreement was not to answer for the debt, default, or miscarriage of another, but that it was an original promise, and therefore not within the statute of frauds.

Relevant to the theory of the defendant and to the contention of the plaintiff, the evidence discloses the following facts: Some time in February, 1913, the plaintiff purchased or agreed to purchase certain machinery from one A. M. Axelson. This machinery included one Rumley 36 H. P. engine. The plaintiff's negotiations, leading to the purchase of the machinery, were carried on both with Axelson and with the defendant Anderson. The engine formerly belonged to the Rumley Products Company, for whom Error to District Court, Phillips County; the defendant Anderson was acting as agent. H. P. Burke, Judge.

If plaintiff rendered services for the benefit of a third person at the request of defendant, the defendant's promise to pay plaintiff is supported by a sufficient consideration.

Department 3.

At the time of the negotiations with the Action by W. E. Spelts against Manuel | plaintiff, the Rumley Company had a mortAnderson. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

gage upon the engine. The plaintiff, acting under his contract to purchase the machinery, took possession of the engine, and found

W. D. Kelsey, of Holyoke, for plaintiff in the same out of repair.

error.

To establish a contract with the defendant for the improvement and repair of the engine, the plaintiff testified as follows:

ALLEN, J. This is an action brought by W. E. Spelts, hereinafter referred to as the "Mr. Anderson employed me to build that enplaintiff, against Manuel Anderson, defend- gine up. The engine was in bad shape and reant, to recover upon an alleged oral contract quired a lot of work about it, and he told me to go ahead and do the work and keep track of for work and labor in the improvement and my time and keep track of the money that I repair of certain machinery, and also to re-paid out, and when I got through with my work cover certain money alleged to have been to turn it to him and he would pay me my monexpended in connection with such work and ey. labor. The cause came on for trial before the court, without a jury, and at the close of the plaintiff's evidence the court, on motion of the defendant, dismissed the action. The plaintiff brings the cause here for review.

"He asked me what I charged, and I told him I charged the customary price, 75 cents an hour. 'Well,' he says, 'You go ahead, and fix it up, and when you get it done * I will pay you.'

"I was tearing the engine down. Mr. Anderson spoke to me about tearing it down. He The defendant's motion to dismiss was says, 'You go ahead and do that work. Interposed on the following grounds: About how long is it going to take you to get

HOLDER TO INSPECT BOOKS ABSOLUTE.

The right given a stockholder of a corporation by Rev. St. 1908, § 870 (Mills' Ann. St. 1912, § 1004), to inspect the stock ledger and solute and not merely a qualified or conditional list of stockholders of the corporation, is an abright, and the corporation cannot inquire as to the motive of the stockholder and cannot prevent the stockholder from taking a list of the stockholders from the books.

Department 3.

Error to District Court, City and County of Denver; Thos. J. Black, Judge.

[1, 2] Under the plaintiff's evidence, the agreement of the defendant was an original and not a collateral promise. If the promise is made by one in his own name to pay for services done for another, that is original; it is his own contract on good consideration, and is called original, and is binding on him without writing. Nelson v. Boynton, 3 Metc. (Mass.) 396, 37 Am. Dec. 148. The circumstances, as shown by plaintiff's evidence, Mandamus by H. F. Fisher against Frank may be considered in this connection. 20 E. Wire, secretary of the Mutual Co-operative Cyc. 164. Such circumstances, in the in- Mining Company. Judgment for plaintiff. stant case, tend to show an original under-and defendant brings error. Affirmed. taking on the part of the defendant, rather than a guaranty. The plaintiff performed the services on the credit of the defendant, and no credit whatever was extended to any other person.

H. L. Shattuck, of Denver. for plaintiff in

error.

Clifford W. Mills, of Denver, for defendant in error.

[3] There is no contention that the defendant's agreement to pay plaintiff for the work and labor upon the engine was without consideration. If the services of the plaintiff were rendered for the benefit of a third person, at the request of defendant, the defendant's promise to pay plaintiff would be supported by a sufficient consideration. 13 C. J. 325, 164. Likewise if the services were for the benefit of the defendant. 13 C. J. 320, 153. There is evidence that the plaintiff's services were beneficial both to the defendant and to a third party. defendant was interested in the sale of the engine to plaintiff, and plaintiff testified, in effect, that he would not have purchased the machine unless it was "satisfactory." The The only question necessary to be considagreement to purchase, furthermore, provid- ered in this opinion is that raised or suggested that a part of the earnings of the ma-ed in the fifth assignment of error, which chinery should be set apart for, and paid to, the Rumley Products Company, of whom the defendant was agent.

ALLEN, J. This is a suit in mandamus brought by a stockholder of a corporation against the secretary of such corporation. The petitioner sued for, and obtained in the court below, a peremptory writ of mandamus, whereby he is permitted to examine and investigate the stock ledger and lists of stockholders of the corporation, to take therefrom such extracts as he may desire, and to copy therefrom the names and addresses of the stockholders of the company. The respondent, the secretary of the corporation, against whom the writ was issued, brings the cause here for review, and applies for a super

The

The contract sued upon was, according to the evidence for the plaintiff, an original undertaking, based upon a valuable consideration moving from the promisee. It was therefore not within the statute of frauds. 20 Cyc. 163; Tuttle v. Welty, 46 Colo. 25, 102 Pac. 1069. It was error to sustain the motion to dismiss.

sedeas.

reads as follows:

"The court erred in requiring respondent to permit petitioner to make a copy of the names and addresses of the stockholders of (the corporation) for his own private purposes wholly said company as a stockholder." independent, and outside, of his interests in

The respondent's answer to the petition for a writ of mandamus contained allegations tending to show that the petitioner's purpose, in seeking to inspect the books of the com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

See, also, Johnson v. Langdon, 135 Cal. 624, 67 Pac. 1050, 87 Am. St. Rep. 156, and Kimball v. Dern, 39 Utah, 181, 116 Pac. 28, 35 L. R. A. (N. S.) 134, Ann. Cas. 1913E, 166,

pany and to make extracts therefrom, was ground of improper motives, because a clear such as mentioned in the above-quoted as- legal right created by statute cannot be defeatsignment of error. A demurrer to the an- ed by showing an improper motive." swer was sustained, and, the respondent having elected to stand upon his answer, judgment was rendered for the petitioner. Stated in other words, the question is whether or not a stockholder's motive or purpose in the inspection of the books of his company, and in the making of extracts therefrom, is a subject for judicial inquiry in this jurisdic

*

"It shall be the duty of the directors or trustees of every such corporation * to cause a book to be kept by the secretary or clerk thereof, containing the names of all persons alphabetically arranged, who are, or shall within one year have been stockholders of such corporation, and showing their place of residence, the number of shares of stock held by them respectively, and the time when they respectively became the owners of such shares, and the time when they ceased to be such stockholders, and the amount of stock actually paid in, and what proportion has been paid in cash; which books shall, during the usual business hours of the day, be open for the inspection of the stockholders and creditors of the company, and their personal representatives, at the office or principal place of business of such company, in the county where its business operations shall be located; and any and every such stockholder, creditor or representative shall have a right to make extracts from such books. Every officer or agent of any such company authorized to keep such book or books who shall * * refuse * to allow the same to be inspected, and extracts taken therefrom, shall be, as provided by this section, deemed guilty of a misdemean

The right thus given to the stockholder of a corporation, by the foregoing statute, to inspect the stock ledger and list of stockholders of the corporation, is an absolute and not merely a qualified or conditional right. In 10 Cyc. 956, par. 4, it is said:

"Where the right is guaranteed by statute, the shareholder need not give any reason to the officers of the corporation for demanding it; the rule of law being that, where a party has a legal right to do a thing, the motive which may prompt him in demanding such right is not the proper subject even of a judicial investigation. It is therefore no defense to a judicial proceeding to compel the granting of this right that the information sought to be obtained might be used for an improper purpose.",

To the same effect is the text in 7 R. C. L. 326, § 303, where, among other things, it is said that

"The modern view, where the right of inspection is conferred by statute absolute in terms, is that the application cannot be denied on the

and note.

Upon principle, and the authorities above cited, we are of the opinion that the writ of mandamus in the instant case was properly issued, and no error was committed in sustaining the demurrer to the answer. The application for a supersedeas is denied, and the judgent is affirmed. Affirmed.

Error to Rio Grande County Court; James W. White, Judge.

Action by Christian Wellendorf against J. Frank Goad, as sheriff of Rio Grande County, to recover possession of an automobile levied on as property of another, brought in the justice court, which found for the plaintiff. Upon appeal to the county court, the jury again found for plaintiff, and defendant brings error. Affirmed.

Charles M. Corlett and George M. Corlett, both of Monte Vista, for plaintiff in error. James P. Veerkamp, of Monte Vista, for defendant in error.

TELLER, J. Plaintiff in error, the sheriff of Rio Grande county, was defendant in an action by defendant in error to recover

was that the car had been taken on execution against the goods of one Immenschuh,

(67 Colo. 56)

KENNEY et al. v. DAUGHERTY.

(No. 9644.)

25(3)—

from whom Wellendorf claimed to have pur-(Supreme Court of Colorado. Dec. 1, 1919.) chased the car. A jury in the justice court found for the plaintiff, whereupon the cause 1. FORCIBLE ENTRY AND DETAINER was appealed to the county court, where the SUFFICIENCY OF ANSWER. jury again found for the plaintiff. The cause is now here on error.

[1] The judgment is attacked upon the ground that the evidence does not establish the fact of a sale of the car to Wellendorf, in that Immenschuh used the car after the sale, and that there was not such a change of possession as the law requires. The case of Goad v. Corrington, 61 Colo. 427, 158 Pac. 284, is relied upon as determining that point. That case, however, was quite different from this on the facts. There the car was kept in a public garage at the time of sale, and continued to be kept there after the sale. The former owners used it after the sale "in precisely the same manner as before," and no one knew of the sale, except the owner of the garage.

Here there was undisputed evidence that Wellendorf, after paying a sum of money which he testified was the purchase price of the car, which is the sum named as such price in the bill of sale, took the car from the place at which it had been kept, and placed it in a dairy barn, which was under his care. It was thereafter kept in that barn until the day on which it was seized by the sheriff, while being driven to Monte Vista by said Immenschuh. The sale was made known by both the parties to the men who were working on the ranch with Wellendorf. He testified that Immenschuh, before taking the car on the two or three occasions mentioned in the testimony, asked and obtained his consent to such use. This is confirmed by witness Bixler, and is not disputed. When an actual change of possession has taken place and is maintained, on a sale in good faith, the article sold may be loaned or hired to the seller, without rendering it subject to levy for the seller's debts. Deere v. Needles, 65 Iowa, 101, 21 N. W. 203; 20 Cyc. 543. The court was justified in submitting the case to the jury, and it cannot be said that the evidence does not sustain the verdict.

In forcible entry and detainer, allegation, that defendants "by beating and striking (plaintiff) and by their superior strength and numbers and with threats of violence did forcibly eject this plaintiff and his family out of said ed under Rev. St. 1908, § 2609 (Mills' Ann. house," was a material fact and properly pleadSt. 1912, § 2969), and answer denying that defendants took possession by force was not a specific denial of said allegation and was an insufficient answer under R. S. 1908, § 2612 (Mills' Ann. St. 1912, § 2972), requiring answer to either specifically admit or deny all of the material facts alleged in complaint. 2. FORCIBLE ENTRY AND DETAINER ~25(3)— SUFFICIENCY OF ANSWER.

Sufficiency of defendants' answer as regards denials of allegations of complaint in forcible entry and detainer is governed by Rev. St. 1908, § 2612 (Mills' Ann. St. 1912, § 2972), and not by the Code of Civil Procedure.

Department 3.

Error to District Court, Sedgwick County; L. C. Stephenson, Judge.

Action by Charles Daugherty against Roy Kenney and another. The court directed

a verdict in favor of plaintiff, and, judgment having been entered accordingly, defendants sued out a writ of error, and the cause is before the Supreme Court on application for supersedeas. Application for supersedeas denied, and judgment affirmed.

Munson & Munson, of Sterling, for plaintiffs in error.

Allen & Webster, of Denver, for defendant in error.

ALLEN, J. This is an action brought under the forcible entry and detainer act. A complaint was filed, as required by the statute, and in due time the defendants, plaintiffs in error here, filed their answer.

The action came on for trial in the district court. At the conclusion of the evidence for the plaintiff, defendant in error here, and upon the calling of the first witness for the [2, 3] Error is assigned on an unnumbered defendants, the plaintiff objected to the witinstruction given at the request of the plain-ness being sworn, or to any evidence being tiff; but it does not appear that any exception was taken to it. It may be said, however, that the objection is not well taken, since it is fully met by the language of other instructions given.

The judgment is affirmed.
Judgment affirmed.

introduced by the defendant, on the ground, as stated in the objection:

"That there is no answer in this case which permits the introduction of any testimony whatsoever upon the part of the defendant."

The objection was sustained, and thereupon, on motion of the plaintiff, the court di

GARRIGUES, C. J., and BAILEY, J., rected a verdict in favor of the plaintiff.

concur.

Thereafter judgment was entered according

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] The theory upon which the trial court's rulings and the judgment were based is that the defendants' answer fails to meet the requirements of section 2612, R. S. 1908 (section 2972, M. A. S. 1912), in the part thereof which provides that the answer, in proceedings of this kind, "shall either specifically admit or deny all of the material facts set forth in (the) complaint." This theory is challenged by the defendants, and defended by the plaintiff. The sufficiency of the answer is the only question necessary to be de-tered by force into the said dwelling house." termined.