52 Colo. 501 | Colo. | 1912
delivered the opinion o'f the court:
For several years prior to December i, 1906/ William F. Althoff and Edward H. Althoff, partners iindev the firm name and style of W. F. Althoff' & Son, carried on in Denver a business of- manufacturing . ice-making machinery and ice-making plants. . In.the latter days of •November of that year Fred Klink, B. Uhlfelder and A. D. Abrahams incorporated-the Althoff Manufacturing Company, to take over the business above referred to of W. F. Althoff & Son. The plan of organization 1was to incorporate with a full paid capital stock of -$ioa;aoo., 'all of which was issued, except $300. of it that went to the incorporators of the new company to- qualify them as directors, to W. F Althoff & Son, in payment for the partnership property, and some patent devices, owned by the members thereof individually. Of this stock the .Althoffs were to retain $41,000 worth, and cover into the treasury of the company the balance, in face value $58,700., a part of which was bought' by Abrahams and
“Denver, Colo., Nov. 30, 1906.
To the Althoff Manufacturing Company, Denver, Colo.
Gentlemen:—
We, W. F. Althoff and Ed. H. Althoff, individually
We will sell you the above referred to property in consideration of your issuing to us the entire capital stock of your company, except so much thereof as the individual members of your board of directors must retain under the laws of this state as such directors, and in consideration of your assumption of the outstanding liabilities of the firm of Althoff & Son.
Respectfully submitted,
(signed) W. F. Arrhorr. (signed) E. H. Arrhorr.
The above proposal is hereby accepted.
(signed) A. D. Abrahams (signed) B. A. Uhrrsrdrr,
' (signed) Frrd Krink.
Directors.”
By their answer -defendants admit that prior to the sale- of their plant to the plaintiff this stock was owned by Althoff & Son, and carried as an asset of the partnership, but- deny that it was included in the sale of its ice-making machinery business to the new company. There was a motion by plaintiff for judgment on the pleadings, on the ground that no issue was tendered, because, it is claimed, that by the averments of their answer defendants admit liability to the Althoff Manufacturing Company to account to it for the proceeds realized from the sale of the Rocky Ford company stock. This motion was overruled, and plaintiff proceeded in an attempt to establish its right of recovery by proofs, and so accepted the issue, and treated the case as if the answer of defendants actually raised it. This was, on principle and authority, a waiver of the motion for judgment on the pleadings. Otherwise stated, a party will not be permitted to treat an issue as presented, fully contest it on proofs, and then deny that there was such issue. If plaintiff desired to insist upon that motion and continue to urge'it, it should have declined to introduce testimony and should have stood upon the motion and allowed judgment to go against it. But even if this were not so, the record shows that at the conclusion of plaintiff’s case the defendants tendered an amended answer which did clearly and unequivocally put in issue the precise matter which had been tried, namely,
'Tire sole question, therefore, is whether, under'the proposition of sale by defendants and acceptance by plaintiff, the stock of the Rocky Ford company was included. This brings us to a consideration and construction of the contract of purchase and sale, in view- of' the evidence adduced bearing on that subject. We are'clearly of'Opinion that this stock was never in fact included, or- intended to be included, in the transaction, and especially-so''since the proofs show that the incorporators -of the new company, the purchaser of the Althoff & Son plant, did Tlot even know, when the contract of purchase and sale' was made, of the existence of this stock of the Rocky ’Fofd company, or that Althoff & Son held or claimed it. ' It is not mentioned anywhere, either in the agreement itself or in the inventory referred to and produced at the trial. The testimony of Mr. Abrahams shows that it was not known that the Althoffs had this stock until over a year and a half after the purchase of their business was consummated. Under such circumstances it is incredible' that the purchasers of the Althoff plant bargained for something of which they knew nothing, and of which they had never heard, or that the Althoffs intended, or did agree, to sell it. A fair construction of the contract,'read as a whole, is that the Althoff Manufacturing Company intended to buy, and only bought, the manufacturing plant of W. F. Althoff & Son at 1411-1415 Wazee street, Denver, with appliances, fixtures, machinery, holdings, moneys, accounts, claims, dioses in action and assets.directly
Judgment affirmed.