Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 223
Hindry, Erickson & Meyer, Jay L. Gueck, Denver, for plaintiff in error.
No appearance for defendants in error, Pat E. Pecht and John T. Bradley.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
In this action to recover rent and taxes due and unpaid under the terms of a lease, the landlord, Brunswick Corporation, recovered a judgment against the tenants, John A. Smith, Pat E. Pecht, and John T. Bradley. On their cross-claim, Pecht and Bradley recovered judgment against Smith for such sums as they might be required to pay Brunswick in consequence of the judgment which Brunswick had obtained against them.
Smith brought this writ of error seeking reversal of both judgments. However, after the case was filed in the Supreme Court, Pecht and Bradley satisfied the judgment which Brunswick had obtained and the writ of error was dismissed as to Brunswick.
In seeking reversal of the judgment against him on the cross-claim, Smith first contends that the trial court erred in denying his motion for continuance. The pre-trial order of July 31, 1967, set the case for trial on August 17, 1967. On the day before the trial, Smith's attorney moved for a continuance. The motion was supported by a letter from Smith's physician which stated that Mr. Smith had suffered a cerebral vascular accident in April of 1966; that a recent examination revealed a continuing effect of this accident, but to a lesser degree than previously; and that it would be at least another sixty days before he would recover to a 'near normal' condition. The trial court observed that the physician had not recommended that the defendant should not go to trial, and he had not stated that Smith's health would be injured if he attended the trial. The motion for continuance was denied on this basis. The granting or denying of a continuance is within the discretion of the trial court. Hoy v. North Jeffco Metropolitan Recreation District, 160 Colo. 382, 417 P.2d 790; Hicks v. Hicks, 155 Colo. 463, 395 P.2d 224. The denial of the motion for continuance in the circumstances of this case was not an abuse of discretion.
Smith also contends that the judgment against him on the cross-claim is in error because it is based on an indemnification agreement which is not in writing. The evidence at the trial established that Smith, Bradley, and Pecht had formed the 'Jet-Kleen Corporation' and had executed the lease in connection with the operation of this business. The venture was unsuccessful. Smith wanted to retain the lease and the demised premises for use in connection with other business. Pecht and Bradley transferred their interest in the lease and in the Jet-Kleen Corporation to Smith in consideration of Smith's promise to indemnify them from any obligations under the lease. The default of the tenants under the lease occurred after this agreement.
Smith contends that the oral agreement was one inhibited by the Statute of Frauds because the contract was either an agreement to answer for the debt of another or an agreement granting or assigning an interest in lands. This position finds no support in judicial precedent. An oral promise by a principal obligor to a co-obligor to indemnify the latter against loss resulting from being required to pay the obligation is not within the Statute of Frauds. 49 Am.Jur. Statute of Frauds s 84; Cf. Enos v. Anderson, 40 Colo. 395, 93 P. 475.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.