Cornforth v. Maguire

12 Colo. 432 | Colo. | 1889

Stallcup, C.

The court gave two instructions to the jury. In the first it was stated that in order to defeat the assignee’s right of recovery the jury must find that the assignment had been made for the purpose of fraudulently hindering and delaying the creditors, and that the assignee had knowledge thereof, and accordingly participated therein. In the second the question of damages "was submitted to the jury. It is assigned and argued here that the court erred in both of the instructions given.

As to the first instruction, it is sufficient to state that the record shows no evidence of fraud, nor intent to defraud, on the part of either the assignors or the assignee, in the assignment made. It follows, therefore, that even if this instruction were wrong — a matter wa do not decide— appellants were in no way prejudiced thereby. We do not pass upon the question presented thereunder for the further reason that since the enactment of our legislature of April 10, 1885, upon the subject of assignments for the benefit of creditors, we do not regard the question as one of importance.

As to the second instruction, and the allowance of $100 damages, there was no evidence upon which either an* instruction or a verdict for special damages could rest.

The measure of damages applicable to this case is the value of the property taken, with interest thereon from the date of the levy; and the jury should have been instructed accordingly. Brasher v. Holtz, ante, p. 201. Section 103 of the code, upon which this case rests, is similar in its provisions to section 88, chapter 62, General Statutes, upon which rests the case cited; sufficient at least to warrant the application of the same rule in cases under the code provisions in which there is no return of the property to the claimant.

The judgment should be reversed and the case .remanded.

Rising and De France, OO., concur.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment is reversed and the cause remanded, with directions that if the plaintiff shall remit $100 a new judgment be entered for the balance; otherwise that the cause be set down for a new trial.

Reversed.