Bales v. Cannon

Mr. Justice Gtabbbbt delivered the opinion of the court: In support of the contention of counsel for defendant that the court erred in overruling the motion for change of venue, it is said, in substance, that it is not deemed necessary to cite authorities, for the reason that the showing made in support of the [278] motion clearly entitled defendant to a change of venne. The section of the code relied upon is not pointed ont, nor any reasons advanced why the motion should have been sustained. On an argument of that character, we will not undertake to determine the question. Besides, it does not appear from the affidavits supporting the motion, or from the transcript, where defendant was served with summons; neither is any suggestion made with respect to the residence of plaintiff. If § 27 of the code is regarded as applicable, we call the attention of counsel to Reed v. First Nat’l Bank, 23 Colo. 380; Brewer v. Gordon, 27 Colo. 111, and D. & R. G. R. R. Co. v. Cahill, 8 Colo. App. 158. By these cases it is decided that the provision of § 27 of the code, that suit may be brought on a contract where it is to be performed, does not give the defendant, if served with summons elsewhere, an absolute right to a change of venue to the county in which it is to be performed; for, notwithstanding this provision, an action on such contract may be tried in the county in which the defendant resides at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county. In support of the special demurrer, it is claimed that it does not appear, from the complaint, that the money alleged to have been collected by the appellant was collected under the terms of the contract mentioned; that it does not appear that any profits accrued to deceased under that contract; that it does not appear that the -money collected by defendant was from parties owing The Colorado Coal and Coke Company, and that it is not shown whether the moneys were collected by defendant as administratris, or in her individual capacity. With respect to the last objection raised, if there is any merit in [279] it, it would be upon tbe ground that it did not appear from the complaint whether she was sued in her individual or representative capacity. That question was not raised by any reason assigned in support of the special demurrer, and, besides, as will appear later, we do not think it is material. With respect to the other objections urged, we think it is sufficient to say that it appears, from the averments of the complaint, that the defendant has received money which, by virtue of the contract between plaintiff and the deceased, plaintiff is entitled to. It is also' urged that the action cannot be maintained, because it appears that the accounts collected by the defendant were partnership accounts, and that the rights of the parties to this action can only be determined in a suit for an accounting. There is no merit in this contention. If, as contended by counsel for defendant, there was a partnership between plaintiff and the deceased Bales with respect to the accounts collected by defendant, then she had no right thereto, either in her representative or individual capacity. On the contrary, they should have been paid to the plaintiff. If, on the other hand, there was no partnership, then defendant, by collecting either in her individual or representative capacity, more than the share which belonged to the deceased Bales, under the terms of the contract mentioned in the complaint, has received money which she should have paid to plaintiff. ' Whichever view is taken, it appears from the averments of the complaint that the defendant has in her hands money which she should pay over to the plaintiff, to the amount for which judgment was rendered, and it is accordingly affirmed. Affirmed. Chief Justice Steele and Mr. Justice Campbell concur.