16 Colo. 162 | Colo. | 1891
This action was originally brought befor'e a justice by Burlock & Co. against the defendant Cross, to recover $265 for goods sold and delivered in the state of Wisconsin. The trial resulted in a judgment, from which an appeal was taken to the county court of Fremont county, where judgment was again rendered for plaintiffs for $122. The action was tried without written pleadings, and simply upon the statement of the cause of action which was originally made before the justice. There was no con-, tention whatever .concerning the substantial facts out of which the plaintiffs’ cause of action grew. As already stated, the action was brought to recover the price and value of certain goods sold by Burlock & Co. to‘ Cross & Hambright. The sale of the goods, and the amount and value, were conceded. The principal defense rested on áii agreement said to have been made years after the sale with a traveling agent who represented Burlock & Co. Substantially it was that, if the defendant Cross would purchase for the house in which he was then clerking what his employers needed in the line of goods carried and: sold by the plaintiffs, the debt of Cross & Hambright would be forgiven. Cross testified that, in pursuance of the agreement, he gave an order for goods to be furnished to his firm, and subsequently, when he went into business for himself, continued to purchase goods from the same parties. Whether such an agreement, without more, can be said to be' based upon a sufficient consideration to support it as a release‘of an existing debt, is a thing which in this opinion need not be determined. According to the proof "in the case, the agreement was óf no value for the purposes of a defense. It was made with a traveling salesman representing Burlock & Co., and as such he would be without authority to' enter
An equally fatal error was committed by the court in the instructions which it gave to the jury. During the progress of the trial some testimony was offered by the defendant tending to show an offer on his part to pay one-half of the debt due from his firm, providing he could be released individually from the obligation to pay the other portion. On this testimony the court attempted to instruct the jury upon the law of tender. The court told them, in substance, that a tender was an offer to pay the amount due, and an offer to pay over the amount in cash. It should not have been given to the jury, for there was no evidence in the case that the plaintiff ever made any tender. It was not an accurate statement of the law, for the obligation to keep the tender good is as essential to the legal efficacy of a tender as the offer of the money itself. Neither having been done by the defendant, he was not entitled to have any instruction on that subject given to the jury. Evidently the instructions must have misled them, and they must have regarded the offer to pay as the equivalent of a payment; for upon no other hypothesis
Heed and Hiohmond, CO., concur.
For the reasons stated in the foregoing opinion the judgment is reversed.
Reversed.