HILLS V. LA DUE.

1. CHANGE OF Venue-PRACTICE.

While section 29 of the code provides that the court may, on good cause shown, change the place of trial when the convenience of witnesses and the ends of justice will be promoted by the change, the affidavit in support of the application should set forth the facts to which the witnesses whose convenience it was desired to subserve would testify, and where no answer had been filed, it should state the facts constituting the defense.

2. PRESUMPTION.

When the evidence has not been preserved, it is to be presumed that the judgment was warranted by the proofs.

Appeal from the District Court of Arapahoe County.

Mr. JAMES A. KILTON, for appellant.

No appearance for appellee.

THOMSON, J., delivered the opinion of the court.

This is an appeal from a judgment of the district court of Arapahoe county against the appellant, and in favor of the appellee. The action was instituted in the county court of Arapahoe county. The complaint avers the loaning by the plaintiff, Howard B. La Due, to the defendant, W. W. Hills, of the sum of $225, on November 10, 1885, at Aspen, Colorado, upon the promise of the defendant to repay the sum loaned upon demand, and alleging demand upon the defendant for the money, and his failure to repay or return any part of it.

Before answering, the defendant moved the court to change the place of trial of the cause to the county court of Pitkin county, on the grounds that it appeared from the complaint that the cause of action accrued in that county, and that the convenience of witnesses would be promoted by the change. The motion was supported by the affidavit of the defendant, setting forth that he resided in Aspen, Pitkin county, and

was a practicing physician engaged in his profession at that place; that he was a man of family, and that his family consisted of a wife and three small children; that his wife was a necessary and important witness in the determination of his defense in the action, and by reason of the fact of his family, and the condition thereof, it would be inconvenient and practically impossible for him to bring his wife into the court in which the cause was pending for the purpose of the trial; that, being engaged in the practice of his profession in Pitkin county, and, being employed by several of the large mines of that county as their physician, it would be inconvenient for him to come to the city of Denver to defend the action, and that he had stated the facts constituting his defense to C. R. Bell, his attorney, who, upon the statement, had advised him that he had a meritorious defense to the action. The motion was denied.

The showing was clearly insufficient to warrant the court in changing the place of trial. We have no law requiring a case like this to be tried in the county where the cause of action arose. The only ground of the motion, which can be said to be within any statutory provision upon the subject, is that relating to the convenience of witnesses. Section 29 of the code provides that the court may, on good cause shown, change the place of trial when the convenience of witnesses and the ends of justice will be promoted by the change. There is nothing in the affidavit from which the court could determine whether the ends of justice would be, in the least, promoted by the change. The facts to which the witness, whose convenience it was desired to subserve, would testify, should have been set forth; and, as no answer had been filed, and, therefore, no defense disclosed, the affidavit should also have stated the facts constituting the defense. Without such showing it was impossible for the court to determine whether there was a defense, or, whether, if there was, the testimony of the witness was important or material. The statement that the defendant submitted the facts to his counsel and was advised by him that he had a good defense, amounts to

nothing. We doubt whether it is allowable to interpose a motion like this before answer filed. We do not decide this question, but, certainly, if such practice may be tolerated, the affidavit supporting the motion should set out the defense with the same fullness which is required in an answer. Without information as to the defense, or as to any fact to which the witness would testify, the court could not well do otherwise than deny the motion.

After the overruling of the motion the defendant answered, denying the allegations of the complaint, and also pleading the statute of limitations. The replication, among other things, averred a new promise by the defendant, made within six years prior to the commencement of the action, to pay the debt. The cause then went to trial, and, upon the evidence adduced, the court gave judgment in favor of the plaintiff for the amount of his claim. None of the evidence is preserved. The new promise pleaded by the plaintiff was sufficient to remove the bar of the statute, and we must presume that the judgment was warranted by the proofs.

The defendant appealed from the county to the district court. The appeal was not taken on the same day that the judgment was rendered, no notice of the appeal was ever given to the plaintiff or his attorney as the statute requires, and the district court very properly affirmed the judgment.

If there was any error in the proceedings the record does not disclose it, and the judgment must be affirmed.

Affirmed.

SNOWDEN, ADM'R, V. CLEMONS.

1. CONTRACTS.

Where services are performed by one person for another under an implied or express contract that the party receiving the service will provide compensation in his last will, and the latter dies without making such provision, an action will lie on a quantum meruit for the reasonable value of such services.

2. QUANTUM Meruit—AssumPSIT.

An action of assumpsit upon a quantum meruit does not necessarily imply a contract. It may lie where some duty would justify the court in imputing a promise to perform it.

Appeal from the District Court of San Juan County.

Mr. C. M. FRAZIER and Mr. E. W. SMITH, for appellant.

No appearance for appellee.

REED, J., delivered the opinion of the court.

Ellen Clemons, appellee (plaintiff below), until January 26, 1890, was the wife of and living with C. C. Clemons, who died on the date mentioned. The testimony establishes the fact that one Dempsey Reese, who appears to have been without family, much of the time in poor health, and of dissolute habits, was, during at least a part of the time, a business partner of C. C. Clemons; that he made his home with Clemons and his family from about May 1, 1877, to the time of Clemons' death, and subsequently with his wife and family the most of the time until his own death, in November, 1890. Appellant was appointed administrator of Reese's estate, against which appellee filed a claim for board, washing, personal attention, care, nursing, etc., from May 1, 1877, to November, 1890, the time of his death, aggregating $10,207.67, which was disallowed by the administrator and this suit brought to recover it.

The testimony introduced was in regard to the whole time, commencing in May, 1877, to which objection was made by defendant's counsel that the claims, until sometime in the year 1885, were barred by the statute of limitation. Objection was also made that the wife could not recover, previous to the death of the husband, except for personal services. During the course of the trial both objections were sustained, the evidence of all matters previous to 1885, and of all claims, except the personal claims of the wife between 1885 and the death of the husband, was stricken out, and the jury was fully instructed to disregard it. After the close of the plaintiff's evidence, application was made to reform the account and confine it to the matters allowed by the court, which was granted, and the amendment made. The jury found for the plaintiff in the sum of $1,500; judgment entered upon the verdict and this appeal taken.

This is one of those peculiar cases that should be closely scrutinized. After years of waiting and after the death of Reese, it appears that the bill was presented for the first time to the administrator. There is no evidence that it was ever brought to the attention of the debtor, and a claim made for payment. That there were services of a very disagreeable and sometimes disgusting character, owing to the inebriety and habits of the deceased, for many years, continually performed by the plaintiff, is clearly established by the evidence. How much compensation had been paid, except the sum of $100 shown to have been paid on one occasion, was not shown or attempted. The evidence in regard to any contract to pay is vague, indeterminate. What there is of it was of promises to remunerate at his death by leaving her his property. The claim of over $10,000, as presented, was probably enough to absorb the whole estate, and based upon the promise to leave to her the entire property at his death. A great portion of it was cut off by the court, holding it barred by the statute of limitations, and another large portion by excluding what should have been the claims of the husband.

The jury found her individual services previous to the