20 Colo. 236 | Colo. | 1894
delivered the opinion of the court.
This action was originally instituted by James A. Kirkendall and Charles S. Kirkendall against James A. Layton, before a justice of the peace, to recover a balance alleged to be due on a contract for the sale or renting of certain pasture lands for pasturing cattle. From a judgment in favor of plaintiffs below an appeal was taken to the county court. The case was there tried to a jury and a verdict rendered
The controverted question of fact upon the trial of the cause was as to whether or not the term for which the defendant purchased the right to use the pasture had expired when the cattle were turned therefrom; or, in other words, whether the spring thaw or breaking up of the winter had then occurred. Upon conflicting testimony, the jury having found this contention in favor of plaintiffs, their verdict is conclusive of that fact upon this review.
The only error assigned upon the admission or rejection of testimony is predicated upon the refusal of the court to allow the defendant to recall the witness Miller, after the evidence was closed, to contradict a statement drawn out on cross-examination from the witness Hall. The testimony so sought to be introduced did not tend to contradict any statement made by the witness in chief, and was immaterial to any issue in the case, and we think the court rightfully exercised its discretion in the matter.
The assignments based upon the giving and modifying of certain instructions are not available for the reason that no objection was interposed or exception taken to the action of the court at the time. We think, however, upon an examination of the instructions as a whole, that the law of the
The right of an assignee of a chose in action to maintain an action before a justice of the peace in his own name has been recognized by the decisions of this court. The Rio Grande Extension Co. v. Coby, 7 Colo. 299; Jackson v. Hamm, 14 Colo. 58.
Upon an examination of the entire record before us, we think the case was fairly tried and correctly determined upon its merits. The judgment will therefore be affirmed.
Affirmed.