Ford v. Rockwell

2 Colo. 376

• Court: Supreme Court of Colorado
• Decided: February 15, 1874
• Status: Published

Opinion

Beleord, J.

The declaration contained only the common counts. It appears from the record that in the fall or summer of 1866, the appellant took his nephew, Frank Ford, to the house of the appellee at Mew Canaan, Conn., and desired Rockwell to receive the said nephew as a boarding scholar. Ford agreed to pay $350 for two terms, of 22 weeks each, which said amount was to cover board, washing and tuition of Frank during the 44 weeks of each year. Rockwell was further required to supply the said Frank with clothing, boots, shoes and books, and all other things needed for his comfortable maintenance and for the prosecution of his studies ; and the said Hiram F. Ford agreed to pay for the same. It is claimed that the declaration should have been special. We think not. When the contract has been performed the plaintiff may recover on simple contract the price of the services under an indebitatus assumpsit, but the contract must regulate the amount of the recovery. Bank of Columbia v. Patterson's Adm'rs, 7 Cranch, 299. The promise in this case was a direct undertaking on the part of Ford and not a collateral one.

It is claimed that, inasmuch as the deposition used on the trial was taken before an unofficial person, he had no power to administer an oath to the witness. The statute authorizes the issuing of commissions to such persons, and their appointment as commissioners carries with it all power necessary to execute the commission. It is claimed that the damages are excessive. Rockwell testifies that Ford was indebted to him in the sum of $350. There is no evidence to the contrary, and this amount the jury found due.

The judgment of the court below is

Affirmed.