5 Colo. App. 489 | Colo. Ct. App. | 1895
delivered the opinion of the court.
During the year 1887, Laura E. Stockdale was the owner of some lands in Park county, and Matthew. C. Jackson was a mill man engaged in making lumber. In August the parties made an agreement which, in respect to those terms essential to the decision, substantially provided that Jackson might erect his mill machinery and such temporary structures as were essential to. his milling operations on certain parts of the land. The owner also sold him the tree tops, and the cut and standing timber, with the right to fell the trees and reduce them to lumber. The consideration on Jackson’s part was represented by thirteen promissory notes of five hundred dollars each, maturing monthly, beginning with the 10th day of September, 1887. To secure payment of this paper, Jackson agreed to give a mortgage on the mill machín
Whatever may be the equities of the case or the real fact concerning the responsibility of the defendant, it is manifest the question was not necessarily settled by the verdict of the jury. The whole case in the minds of the jury may have turned directly on the question as to the character of the transaction between Gomer and Jackson. There was evidence enough offered to raise a suspicion in the minds of the jury that Gomer and Jackson had-arranged to maintain this suit in Gomer’s name for the recovery of the value of the lumber and the logs, hoping thereby to escape any responsibility on Jackson’s part for a failure to carry out his contract, other than what was enforeible by virtue of the chattel mortgage. The testimony concerning the transaction between Gomer and Jackson was not very satisfactory in these particulars, and it is very manifest the plaintiff was prejudiced by
Since this doctrine prevails in Colorado, it is clear Gomer had a right to bring the suit on the transferred claim. The agreement between Gomer and Jackson concerning the disposition of the proceeds did not affect the recovery. Of course, if the transfer in any wise operated to restrict the defense Avhich Stockdale could set up, it might be a different matter. Nothing was plead which in any manner tends to raise such a question, and this is all that can be said about-it.
In answering the second defense, the defendant simply denied generally the allegation of the complaint. This second cause of action concerned the mill and its machinery, and was brought to recover for its taking. If, as would appear -from the record, all this property was seized under the chattel mortgage which Jackson had executed, that instrument, if valid, would protect the defendant from a suit for damages for its removal. It is questionable whether, under the general denial, the defendant could .make the proof essential to the protection of her interests as against that cause of action. From the entire record, it is very clear to us the security should be pleaded and proven in order that the
For the error committed by the court in its instructions to the jury, the judgment will be reversed and the case remanded.
Reversed.