4 Colo. App. 486 | Colo. Ct. App. | 1894
delivered the opinion of the court.
This is a suit brought by- the plaintiff in error to recover the sum of $990.40, as a balance due for lumber and building material furnished by the plaintiff to the defendant between February 5, and April 22, 1891. The answer denied the allegations of the complaint. There was verdict for the defendant, and judgment accordingly.
On the 6th day of November, 1890, the defendant entered
Wood testified that after his purchase of Cole’s interest, the contract was abandoned, and he carried the work to completion as the agent of the defendant; that all the'bills for the buildings were made out to the defendant, and, after be
As to the conflicts in the testimony, the verdict of the jury is final; and the only questions remaining for our consideration arise out of the rulings of the court at the trial. The contract between Cole and the defendant was admitted in evidence in behalf of the defendant against the plaintiff’s objection. The ground of the objection was that it tended to establish an affirmative defense, which could not be made without being specially pleaded. This objection is without force. The complaint alleges the purchase of the material by the defendant. This the answer denies. If the contract with Cole was annulled when Wood acquired his interest, and the construction of the buildings was continued by Wood merely as the agent of the defendant, then the purchase of the lumber by Wood was a purchase by the defendant; but if the construction was continued by Wood under the origin'll contract, and subject to its terms, then such purchase by him was not a purchase by the defendant, and the contract, together with the other evidence connecting Wood with it, simply went in denial of the averments of the complaint. Affirmative matter, requiring special plea, must be in avoidance. It is consistent with the cause of action, but operates to defeat it. If, however, such matter is inconsistent with the claim set up, its only effect is to disprove it, and it is admissible in support of a denial. The evidence was therefore properly received.
An objection was sustained to the following question asked
Against the objection of the plaintiff, a number of receipts and statements of Mr. Wood were permitted to go in evidence. The first receipt is dated March 28th, and the last April 25, 1891. They were all signed by Mr. Wood, and acknowledged the receipt by him from the defendant of money in different amounts, “ to apply on contract for Logan Avenue buildings.” The statements cover a period from February 8 to April 6, 1891. They charge the defendant with the contract price of the buildings, and credit him with the different sums paid upon the contract. The effect of these receipts and statements would be in direct contradiction of the testimony of the witness that the contract had been abandoned, and that he completed the buildings only as the agent of the defendant; and for the purpose of such contradiction they were important. It was not objected that a proper and sufficient foundation for their introduction had not been laid in the cross-examination of Wood. The sole ground of objection was that they were irrelevant and immaterial. To so hold would be a serious assault upon elementary principles.
The judgment will be affirmed.
Affirmed.