Eskridge v. Avery

Thomson, P. J. The appellant, a physician, sued the appellee for services as an expert witness for the people at the trial of a criminal prosecution against one Frank W. Millington and another. The complaint alleged an express contract between the plaintiff and the defendant, whereby the latter promised, in consideration that the former would attend the trial and testify for the prosecution, to pay him $25.00 per day for each day’s attendance in court as such witness. It also averred that in pursuance of the agreement the plaintiff attended at the trial twenty-five days, and testified in the cause, and so became entitled to $625, no part of which had been paid. The answer denied the alleged agreement. The cause was tried by the court, judgment went for the defendant, and the plaintiff appealed. But one question is presented in argument, and that is whether the evidence supports the judgment. We think it would be difficult to deduce the agreement alleged by the plaintiff, or, for that matter, any other agreement, from his testimony. But the defendant, as a witness for himself, squarely and unequivocally denied the agreement alleged, and, even conceding that it was sworn to by the plaintiff exactly as the complaint stated it, the conclusion upon the facts reached by the court, in whose presence the witnesses testified, is a finality here. Johnson v. Kountz, 21 Colo. 486; Miller v. Thorpe, 4 Colo. App. 559. Like actions were also brought against the defendant by Samuel A. Fisk and Edmund J. A. Rogers. Those cases were consolidated with this case, and the three were tried together. The evidence was the same in all,-the same judgment was rendered in each, and all the judgments are affirmed. Affirmed.