4 Colo. App. 314 | Colo. Ct. App. | 1894
Lead Opinion
delivered the opinion of the court.
The dealings between Paradice and Dolan Bros. & Smith in 1890 resulted in an account amounting to about sixteen hundred dollars, which the firm owed when this action was commenced. Paradice was a wholesale dealer in plumbers’ supplies, and the copartnership carried on their business in the city of Denver. A bill was presented to the firm early in January, 1891, for nearly two thousand dollars, and they paid some three hundred dollars on it — reducing the indebtedness to the amount claimed. Paradice sued out a writ of attachment, and filed the statutoi-y affidavit in which the grounds stated were two — fraud in the contraction of the debt, and that the goods should have been paid for on the 1st of January. When the case came to trial, and on the conclusion of the plaintiff’s testimony, the court held the allegation of fraud unproved, and submitted the other matter to the jury. There was a very large amount of testimony introduced as to the date the debt matured, for it was conceded on both sides if the goods were sold on time a right of action had not accrued to the plaintiff; but that if they were sold on terms that called for payment on the first of the ensuing month, the plaintiff rightfully brought his suit, and his ancillary writ could be maintained. In support of his contention, the plaintiff offered proof which tended to show that the goods sold during one month were payable about the first of the ensuing month, and that this had been the course of dealing between the parties. To overcome this proof, one of the Dolans and Smith, who were members of the firm, testified there was a specific agreement by which it was provided that all goods should be taken as sold on sixty days’ credit. What they attempted to prove was a definite agreement for a specific credit. The case was tiled to a jury, and the plain
The appellant contends that there was no proof of an arrangement between the two houses with respect to the dealings which either specifically made the bills paj'able in the ensuing month, or from "which any such arrangement could be deduced. Of course, counsel concede, as they must, that if there was a uniform course of dealing between the parties, and there were definite rules of trade settled by the vendor which would bind the purchaser to pay at a definite date, and those rules and arrangements were brought home to the knowledge of the vendee, they would become obligatory and be taken as part and parcel of the transaction. But it is insisted that there is no evidence which warrants this conclusion. It must be admitted that the proof in this respect is not so clear nor so satisfactory as to leave the matter free from doubt; but we discover nothing in the record which would justify us in setting aside the verdict of the jury. In contravention of this proof, which lacks the robust and substantial force apparent in some cases, the defendants testified directly to a distinct, positive agreement between them and the vendor for a sixty-day credit. They were wholly unable, however, to satisfy the jury as to the truth of their contention. We -cannot say in the face of a verdict rendered against such testimony, that our impressions derived from the reading of the record should take the place of a positive conclusion arrived at by a body which was confronted with the witnesses. Counsel likewise insists with great vigor that the court erred in permitting proof to be introduced concerning the custom which prevailed in the business as carried on by the plaintiff, and that much of the testimony given by his clerks infringed upon the rule concerning the introduction of hearsay testimony. A careful examination of the record fails to convince us that the court committed serious error in this particular. It is possible that some little evidence crept in which a strict enforcement of the rule would have excluded; but we canuot see that the defendants were so seriously prejudiced
It will accordingly be affirmed.
Affirmed.
Rehearing
ON PETITION EOR REHEARING.
delivered the opinion of the court.
The petition for rehearing in this case will be denied. It is seldom necessary or expedient on such applications to express the reasons which lead the court to adhere to its former determination. In this particular case, the opinion seems to be assailed on a basis somewhat similar to that on which the attack was laid in the case of Murphy v. Hobbs, 8 Colo. 130. The matter is of such frequent recurrence that the court feels quite justified in suggesting the usual course which it pursues in the disposition of causes. We are quite well aware that it is often a ground of complaint with counsel that the courts fail to consider and determine various matters which have been urged upon their attention in the oral and printed arguments. This probably comes from a failure to appreciate the immense addition to the ordinary labors of the court which this course would entail. Wherever a case is affirmed, unless it involves some controverted question of law, a general suggestion of the position which the court takes with respect to the matter is all that is consistent with a successful and rapid discharge of business. It would be manifestly impossible to dispose of all the theories of attorneys in such a way that at the end of the opinion the judge could honestly write, quod erat demonstrandum. It is conceded in the present case some evidence was admitted concerning the custom of the dealer Paradiee which ought to have been excluded. The admission of this evidence, which in a very remote sense may be said to bear upon one of the substantive facts of the case, to wit, the terms of the sale,
The former opinion will be adhered to, and the judgment will stand affirmed.
Rehearing denied.
