Wiesman v. Rude

Mr. Justice Denison delivered the opinion of the court. A geneeal demurrer to the amended complaint was sustained. Judgment for defendant and plaintiff brings error. The substance of the complaint is that to settle litigation and dispute between the parties, the plaintiff exe *163 cuted and procured to be executed certain instruments, which are set forth in full, “for delivery to defendant upon the payment of said sum of twenty-five hundred ($2,500) dollars, the consideration therein expressed.” That defendant delivered to his attorney, Philip Hornbein, checks for $2,500, payable to said attorney, “with instructions and authority to endorse said checks payable to the order of the plaintiff in consideration of the delivery of said written instruments to the said Philip Hornbein, in compromise and settlement of said controversies and litigations”; that thereafter said instruments were delivered to Mr. Hornbein who endorsed the checks and was about to deliver them when defendant revoked his instructions and authority. It is clear that the complaint states no cause of action. If it had alleged that, in consideration- of plaintiff’s agreement to procure and deliver to defendant the written instruments, defendant promised to pay $2,500; that plaintiff had delivered the instruments and defendant had refused to pay, it would have stated a cause of action, and the facts which it does state would have been evidence tending to prove the same (Swanson Theatre Co. v. Pueblo Co., 70 Colo. 83, 197 Pac. 762; Sweet v. Barnard, 66 Colo. 526, 535, 182 Pac. 22); but no contract of any sort by defendant is alleged. The written instruments do not contain or purport to contain any contract on defendant’s part and are not signed by him. The most that can be gathered from the complaint, even ignoring the fact that its facts are merely evidential, is that defendant authorized his attorney to deliver checks but revoked before delivery. The revocation was lawful, because, since no previous contract was alleged, the delivery of the instruments did not amount to performance of any contract by plaintiff, and the authority of the agent therefore remained revocable. This conclusion relieves us from the consideration of the statute of frauds. *164 Judgment affirmed. Mr. Chief Justice Allen and Mr. Justice Whitford concur.