73 Colo. 334 | Colo. | 1923
delivered the opinion of the court.
The defendant in error had judgment against the plaintiff in error in an action upon an express contract for services in topping beets.
Error is assigned on the admission of the testimony of Griffin to the effect that he passed on to the plaintiff the information thus acquired from Roach. It is not disputed that the plaintiff did the work and he says he did it under an employment by the bank. By instruction 2, this question of employment is made the turning point of the case. Roach’s testimony having been admitted, and there being no error assigned upon its admission, it is difficult to see how the testimony of Griffin, as above stated, could have prejudiced the defendant’s case. It is only to the effect that he repeated to plaintiff the assurances that Roach testified he had received from the bank. Upon the question of the contract, this repetition could have no greater effect than did Roach’s testimony, of which no complaint is made. There was no error in the admission of Gridin’s testimony.
It is also urged that the court erred in not sustaining a motion for a directed verdict at the close of plaintiff’s case,
It is urged also that the court erred in refusing to instruct the jury that plaintiff was seeking to recover upon a promise to pay the debt of another, and that such promise was void under the statute of frauds. It does not appear from the record that any such instruction was requested. Under such circumstances, a failure of the court to instruct is not error.
The other assignments present no new question, and call for no consideration. The verdict having been returned upon conflicting evidence, and there being evidence to sustain it, it cannot be disturbed.
The supersedeas is therefore denied and the judgment affirmed.
Mr. Justice Whitford and Mr. Justice Denison concur.