Denver, South Park & Pacific R. R. v. Reed

Stone, J. Appellee sued to recover for work done in ■grading a portion of the road of the appellant railroad company. At the trial, which was had to the court without the intervention of a jury, Reed, the appellee, testified that he •did work in clearing and grading a portion of the road of [331] -•appellant under a subcontract with one Yangorder, who 'had a contract with the railroad company; that his (appellee’s) work amounted to something over $200; that he was paid by L. H. Eicholtz the sum of $108.30 upon the -engineer’s estimate of. said work, leaving a balance due of $96, for which this suit was brought, and that Mr. Eicholtz verbally promised him that he would pay the balance; that no memorandum of such promise was made iu writing; that the appellant company was not a party to the contract between appellee and Yangorder for the work done, and that no lien was filed therefor on the property of the company. J. J. Shaffer testified that he was superintendent for Yangorder, and that he made the contract with appellee for Yangorder; that Col. Eicholtz paid other men who worked under Yangorder’s contract; that Yangorder •stopped work, and his contract was taken off his hands by the railroad company; that the work of appellee was -done before Vangorder quit his contract; that Eicholtz paid the laborers upon Yangorder’s pay-roll; that the ■money paid was charged to Yangorder; that the amount paid each man was marked paid on Yangorder’s books, •and that Col. Eicholtz took Yangorder’s receipt for the money so paid in favor of the railroad company. O. F. Dunsbar testified that he was Yangorder’s clerk •and bookkeeper, and that Yangorder gave his receipt to Eicholtz in favor of the appellant company for the $108.30 paid to appellee. Col. L. H. Eicholtz testified that at the time he paid the money to appellee he held no office whatever in the railroad company, but was president of a construction ^company, which was the principal contractor for the building of the appellant’s road; that at the time of taking the contract off the hands of Yangorder, a settlement was had, and it was supposed a sum amounting to between five and six thousand dollars was due to Yangorder; that the company desired that the laborers and [332] material men should be paid as far as this money would go;, that witness was sent by the company to settle with Yangorder; that Yangorder agreed that the men should be paid as proposed, gave witness his pay-roll, directing him to pay the money, and gave his receipt for the amount; that appellee’s share of that money was $108.30, which was paid him; that it was afterwards ascertained that by these payments Yangorder was in fact overpaid $3,500; that appellee had no contract with appellant, and that' the latter was not a party to the contract between appellee and. Yangorder; that the money was paid at the request of Yangorder; that the receipt witness took therefor stated that Yangorder had received of the railroad company $108.30, paid to James Reed, and witness entered in his memorandum book: “Paid James Reed $108.30, on account of Yangorder,” and indorsed the amount paid on the engineer’s estimate. Witness Eicholtz further-swears positively that he never at any time made any promise whatever to pay appellee the balance in any way; that he had no authority from the appellant company to settle the claims of any of the subcontractors, material men or laborers, but was merely instructed to see that .the money, supposed then to be due Vangorder, should be paid to these men as far as the same would go. This was all the material testimony in the case. The court thereupon rendered-judgment in favor of appellee for $96, the amount sued for. Error is assigned upon the refusal of the court to grant-a nonsuit, the refusal to grant a new trial, and in rendering judgment for appellee. We need only consider the error predicated on the judgment. Prom the evidence it is clearly apparent that there was no contract between the parties to the suit upon which to base the action. Nor could the action rest upon .the .promise alleged to have been made by the witness Eicholtz. There was no evidence of such promise except the [333] testimony of the appellee, and this was denied positively in toto by Mr. Eicholtz, who also as unequivocally denies that he had any authority to make such a promise on behalf of appellant or even to settle with the appellee. There being no evidence of liability on the part of the railroad company to the appellee, there was no cause of action against it, and no ground for the judgment to stand upon. Judgment Reversed.