*1 170 no
Finding reversible error in the record the judg- ment is affirmed. Young
Mr. Chief Justice Hilliard, Mr. Mr. Justice Bakke not participating. 14,508.
No. Company Mangini. v. (109 P. 1055) [2d] January 6, Rehearing Decided February 3, 1941. denied 1941. for Reed, Mr. R. H. Walker, B. F. Mr.
error. E. de- Kelley, Mr. Charles Coughlin, J. W. *2 in error.
fendant
En Banc. Young the court. delivered the opinion The opin-
This case is us for the second time. before Dando v. ion the Mangini Company, review, former 453, 101 Colo. a statement of 675, 74 P. contains (2d) time, the and and the evidence as of that pleadings should be read in connection our present pro- with nouncement. the had judgment, retrial Upon plaintiff and the error a writ of Company prosecutes secure a assigned, reversal. Numerous errors are name- two, which we deem it to сonsider but necessary the first and ly, fifth, which are as follows: the “1. The motion of court erred in the overruling defendant directed below, error, the for a verdict favor of the defendant.” “5. The court ruling upon erred in not and holding the agree- defendant’s motion for a directed verdict that ment made the which the relies upon deceiving and Rаmon for the purpose the defendant the under- itself, and with corporation that of it should be withheld from standing knowledge rul- the defendant not and holding and in corporation, such not that was void and could ing agreement the of the agreement corporation.” The matter here most as a urged strenuously ground the contract judgment, for reversal of that namely, of the state and is violative that public policy enforcement, not lend their aid to its courts should us, the case was before formerly not suggested in our former opinion used any language intended to apply should not be construed as apply- ing of the propriety court aid to lending enforcement оf such a The trial court evident- contract. ly of the some there- opinion, justification for in language view used that we opinion, that of the case. were then passed upon phase We that opinion, under the such evidence as presented, issue involved, was not that necessarily nor did appear action a frаud plaintiff necessarily constituted against, that to, or resulted in proximately damage Dando Company.
areWe aware of the we rule —which recognize— is of an court on an pronouncement appellate sue in a case to it presented becomes the law of case, but the rule than does extend to matters other those which in fact decided were issues upon presented and considered in review, the initial and for this reason we have out limitations should pointed *3 placed our former upon adjudication.
There was in the case as first reviewed evidence of a and Ramon Solis to contract between effect that plaintiff should make certain investigations for Sоlis and that he in consideration would pay therefor off a note secured a by deed of trust on her Plain home. tiff testified that shé made the that Solis investigations; liquidated -note which, with mortgage securing payment, to gave her; and that paid note mortgage were in her possession and control so might released mortgage or as she sаw fit, The evidence disclosed that the note was with paid a Dando check Company by drawn Solis, if the lat ter had no so to use authority funds company awas matter for an accounting between him and the company, since the use of the company’s money was not shown to have been contemplated by the contraсt between plain tiff and Solis. Under the recorded evidence previously at this presented the first point contract appeared have been consummated. Whether plaintiff had knowl- by assignment edge the Behneman of an of the note Company Company That not material. to the Dando by procured her. That Solis, not Ramon kept in to be note should be delivered Ramon Solis upon Company agreed between the Dando plaintiff files was not presented Solis, and Ramon as the evidence was her trial, until the contract between at the first after payment note. completed his and Solis was Up plaintiff, as then dis- point to this the conduct theory explainable not- evidence, closed pur- involving any necessarily intentions, fraudulent Company or poses, the Dando effects, as related to or any trial possible In the first creditors. of her future sug- subsequent upon the testified that it was- papers gestion she delivered Solis that Ramon Company. placed to him to be in the filеs of nothing to indicate time in the record at that There was paid to be concealed that the that the note was fact the Dando Com- interested in the affairs from others pany. plain- nothing the record Under such state of respon- any way being in tiff construed as did could be money by company’s Ramon sible for the use of pay concerned, far as she was Solis to her note. As subsequent jury reasonably might that the have inferred subsequent delivery company of the note to respect effect of have the action thereto did not with financially, placing any position it in other or different any proximate cause of or that such action was the gаve damage it; neither that the therefore suf- note nor consideration for a bailment of the damage intentions or fered referable to fraudulent respect actions of the thereto. Aside from *4 public argued question policy, on the former previously plaintiff’s paying noted, review as action money given says interest with to her executing Ramon Solis, extension, and in did not injure place any position- or it in worse kept than if she had done neither or had the note and them. lodged in her desk she first own where mortgage violative of the contract any being Aside from question jury clear case for the there was a public policy, here. in the record first presented under evidence on the told story by plaintiff the nature of the Though the court with former trial not- calculated to impress truth, falsity of its truth or determination of the province jury. first in the The variation testimony between plaintiff’s but the record before great, trial and the second is us contains statements and admissions of the different inferences which now light properly here and from in evidence might be drawn other facts on the vital trial, first makes the conflict of significance in a consideration of the legality question transaction disclosed.
The in the second as plaintiff, given record, trial and contained in the contains present statement it was understood and bеtween agreed Ramon the note Solis and herself before procured they from the Behneman mortgage Company as an should be in the file of the Dando kept Company and that valid and apparently subsisting obligation, in said com- should not disclose to others interested returned to her on pany that was a note to be demаnd subsisting and was not in fact a valid and obli- As has not the testi- mentioned, such was gation. such trial, on the first nor were mony facts from her reasonably testimony given to be inferred at time. to others in- That the fact was not known terested in the from the uncontra- company appears dicted and in the record of the evidence unimpeached trial, consideration, under the other of- second now and stockholders testified in of de- ficers who behalf fendant. It thus that not did appears only Ramon Solis intend that such fact should be concealed concealed them and others, from these from remained in of it. ignorance
175 light subsequent developments In the of these рlaintiff escape there is no from the conclusion that agreed, anything before done toward Ramon Solis was taking up mortgage, Dando Com the note and that the thought pany plaintiff doubtless was a one-man —which company, undisputed but which evidence shows unknowing been such—should be made an to have agency carry agreеment into effect their to maintain mortgage apparently the note and as an valid and sub sisting obligation. purpose in the minds of With this money pay Company both, Dando was used to says Company note, Behneman for the assign company check, check. An saw which was mortgage ment the note and made to the Dando of Company; placed files, in its and a were record company made the transaction in of books. Interest paid property note the owner on mortgage given payment which to secure note. in Later 1934 an extension of the note and mort gage signature, plaintiff was made in over acknowledged Company she was indebted tо the Dando in the sum $2,500. Under the record us, as now before the scheme to use the Dando Com pany, company and to conceal from all interested in the being other than Ramon Solis that it was used, so had mutually formed Solis and before the Company procure check was used to the note. It may pre-existing in completed hаve been settlement of a legitimate investigations contract to make the which plaintiff testified she made; nevertheless it was Dando Company money that was used, and when it was used Company get knew that the Dando was to company, except note which all connected with the Solis, were led to believe that it would own аs a valid obligation plaintiff, fact it would not as such because of the- own contract between her and compliance with which he had it. To en agreement any money ter into such an with Solis before knowledge company paid; and those interested in the to be used thus money were fact, a dif- ignorance quite kept used from one in which Solis merely situation ferent *6 he of a of which corporation president the check a controlled, plaintiff supposed pay and which she which, debt to her concerning aught contractual knew, might connected with the company all others case, In the one as heretofore knowledge. full stated, the if it was not owned and controlled company, its man, Solis, one have to look to unfaithful by would In other, if he exceeded his a will- agent, authority. beneficiary of unfaithful ing agent’s cooperator to be conduct should not to ask certainly permitted acts, of his at wrongful relieved the burden sharing of the reason expense cоmpany, full knowledge, to benefit. sought case, stood,
In the former as the record after a consummating legitimate transaction entered upon if motives, course of even with dealing, improper because, did not injure a transaction company Solis, then between completed company all, had been if at the unfаithful- already damaged, ness of its his president exceeding authority by use funds. Under the record now before improper us the i.e., the unauthorized damage company, funds, out of its was an in the paying incident consum- mation of an agreement as a necessarily operated itself, fraud to its upon damage independ- ent of matters оf public policy. Similarly pay- ment of interest and the extension ac- mortgage a new and different quire entirely significance per- ifmit, do not different require, entirely inferences to be drawn from them. become the They evidence of a continuing participation plan concealment from the officers of the cоmpany entered even to the time into prior company’s money used to the note. procure light testimony, In the of the variation in the disclosed, from that record, now contained in the former opinion independent that, we are of the of the matter policy, question public which we did not in our opinion former plaintiff, and dо not now decide, conduct of testimony,
as disclosed her own was such preclude successfully asserting as ship from owner mortgage, recovering
of the note and and from damages alleged for their conversion. The defendant’s motion for a directed verdict should have been sus judgment tained. The is reversed and the re causе manded with instructions to set it aside and to enter judgment for defendant.
Mr. Chief Justice Hilliard, Mr. Justice Francis E. Bouck, and Mr. Justice Bakke dissent. Bakke, dissenting. *7 good purpose repetition
No would be served a allegations sufficiently appear the of fact, which the complaint present as set forth in court’s and former opinions. important question they The is whether were sufficiently support established to the verdict. I think they plaintiff’s employment were. The fact Ramon seriously disputed, though attempt Solis is not and an was made on cross-examination her to discredit testi- mony concerning employment jury said believed say seriously disputed, by her. I not was which I mean a that number of witnesses could called testimony regarding employment to contradict as called, related. .None was so I assume that defendant regard. seriously was satisfied in that It is not con- tended, nor is there issue made therof, $2,500 that represented —or cancellation the indebtedness question the note in in that amount —was not reasonable compensation performed. for services undisputed
It is also that Ramon Solis the holder company. note with $2,500 a check How- to the al- not endorsed company, note was ever, that described an to it which there assignment was though There is as to whether dispute the note trust deed. and Ramon among the assignment papers that was not, to It the copy gave рlaintiff. probably to plaintiff allegedly that was be delivered not However, “void.” that would have been marked a of it. conversion, defeat but be part plain- made that we should permit is Complaint evidence permitting of the rule of advantage tiff to take that against one to testify corporation the deceased individuаl against would not permitted Counsel had been incorporated. whose affairs personal qualified the rule and admit also well under the circumstances. Counsel testify the situation describe remedy know lies legislature judiciary. with the
However, the rule is not so ill-founded as counsel seeks to make for it appear, permits expоsure conduct of might, individuals otherwise could, name, be well concealed under the corporate if a his the cor- person business, sees fit to incorporate assumes the ad- poration as well as disadvantages vantages form. corporate that defendant was urged it be logically Nor can life Ramon Solis’s during beсause here, victim innocent con- the conversion was so far as the company is borne a “one-man” corporation That this was cerned. his family Solis and owned Ramon the fact that out by from him —Solis being gift stock all the stock —their em- and the mere manager daughters general being *8 officers, and Solis con- as although designated ployees, Therefore, like a household. ducted the corporation by the conversion com- became by conversion the fic- disregard the court ‘will “In such cases pany. cor- from members of the entity apart tion of corporate a means is to be used as attempted poration v. a fraud or an act’.” accomplishing Gutheil illegal Polichio, 426, 431, 103 Colo. 86 P. 972. (2d) is made memory- of the failure of
Complaint plaintiff’s, to her regard on the hearing. first ob-My servation the record me memory convinces that her was no worse or better than that of some of witnesses defendant, for so that remains a factual issue for deter- mination by As to the there jury. whether receipt, one, too, actually was a matter jury under the circumstances, but to may be said that as it, corroborated daughter.
Counsel for defendant are admit relying the statute which permits aside made setting agreements feature, defraud creditors. With removal of that the case under the former decision becomes an out and out for the case jury, and while present counsel object to the instructions, no exception them re- giving served counsel at the trial. permit To cases to be reversed this court on the simple expediency changing counsel on the way up dangerous practice and succeeding counsel should be hеld record made their predecessors.
There could be elaboration of a number of things in this litigation which the trial judge summed up well when he said: “An old man in love with a young woman.” We may approve and there is not much we do it, can about but we should not “the permit old man’s” family to the direct of his beneficiary im- conduct, if proper any. Mr. Chief Justice Hilliard Francis
E. Bouck concur this dissent.