De Wein v. Osborn

De France, C. The first and second errors assigned go to the rulings of the court denying the applications for a change of venue. From the holdings announced by this court in the cases of Law v. Brinker, 6 Colo. 555, and Bean v. Gregg, 1 Colo. 499, as to where a suit like the present may be brought, it follows that the first of said applications is faulty in not showing, if such is the fact, that the plaintiff was not a resident of Pueblo county at the time of commencing this action, and that no error was committed by the court in denying the same. The second application rested in the discretion of the court, and we can find no warrant for saying that such discretion was abused. By the third error assigned it is asserted that the court erred in sustaining the demurrer to the first defense of the answer. The instrument sued upon in this case is, in legal effect, not unlike that mentioned and construed in the case of Cushman v. Haynes, 20 Pick. 132. The promise made is upon a contingency,- and the amount to be paid is left uncertain. In a complaint upon such an agreement it is necessary to aver the occurrence or non-occurrence, as the case may be, of the contingency upon which the promise depends; and upon a denial of [410] such a averment it is necessary, in order to a recovery, to prove the same. 1 Pars. Bills & 1ST. 48. The complaint in this action contains the necessary averment in this respect, and it was denied by the first defense in the answer. An issue of fact was thereby created. The demurrer to that defense should therefore have been overruled, and for this error the judgment must be reversed. The instrument sued upon is not a promissory note, because of its uncertainty in the amount of the payment promised. Whether the complaint is sufficient in respect to its averment of the consideration upon which the agreement is based, or defective for declaring upon the same as a promissory note, are questions upon which we do not pass. Should the plaintiff deem it advisable to amend his complaint in these particulars he should be accorded the privilege of so doing. Stalloup, 0., concurs. Rising, 0., dissents. Per Curiam. For the reasons stated in the foregoing opinion the judgment is reversed. Reversed.