12 Colo. App. 59 | Colo. Ct. App. | 1898
Lozier & Company brought an action against the appellee, Hannan, to recover a balance of $578.80, claimed by the firm as the unpaid portion of a total account amounting to a little upwards of $26,000. They gave Hannan credits for a little over $25,000, and the difference between the two sides of the statement made the sum sued for. We regret the necessity which compels us to reverse the case because it has been three times tried before a jury, and the verdict ought to be upheld. We do not intend to review the entire case nor consider all the errors assigned, and we shall reverse it simply on one question, discussing that and one other respecting
The denial of the indebtedness raised no issue, nor was the purchase of the goods charged to have been bought so negatived as to force the plaintiff to prove his case. Board of County Commissioners of Pueblo Co. v. Gould, 6 Colo. App. 45.
If a party desires to raise an issue respecting the purchase and delivery of goods he is bound to so frame his denial as to compel the plaintiff to prove his case, or else admit it to a certain extent, and deny it as to the balance. The plea was a negative pregnant. The case stood for trial practically on that part of the answer which attempted to set up sundry counterclaims growing out of the transactions between the parties. These counterclaims were based on the return of defective goods, payment of express charges, a reduction in the value of the goods and a claim for certain saddles, being the cost of putting Hunt saddles on the bicycles delivered in place of those which were sent with the machines. None of these counterclaims were well pleaded; they are inaccurate in form and probably insufficient in substance. Under proper objections all evidence offered in support of them would have
There is a matter, however, which is radically wrong and which we think is available to the appellant. The goods sold were bicycles known as Clevelands No. 4. This is a machine ivell known to the trade, of a specific designation, made by a particular firm, of a definite style and variety and of a certain description and quality. The defendant did not aver that there had been no compliance by the plaintiff with Iris contract to deliver perfect and completed machines. Notwithstanding this want of a plea respecting it he undertook to prove a breach of the contract and a failure to deliver bicycles with tires. He offered testimony to the point that some twelve or more of the machines were delivered without tires, and that he was compelled to buy and put tires on these machines at an expense, and to his damage in a sum amounting to nearly #200. The evidence was objected to as immaterial, and the plaintiff moved to strike it out and take it from the jury because it was not within any issue tendered. We think this objection was well taken, that the motion to strike out should have been granted, and that the consideration of this fact should have been withdrawn fro m the jury. It is this error
There is another matter about which we feel compelled to make some observations for the benefit of the trial court on the subsequent hearing. The defendant pleaded that the Cleveland wheel was exclusively handled by the plaintiffs : that they sold him 200 wheels, No. 4’s, at the wholesale price of $100, and that it was one of the conditions and provisions of the contract that the defendant should maintain this price which was specified in the contract, and as a further inducement to the purchase the plaintiff agreed to maintain the price at $100 wholesale, and $160 retail; that the plaintiff in violation of this contract reduced the price to $60.00'wholesale, and $100 retail during the year, and while the defendant had on hand twelve unsold bicycles. The bulk of the defendant’s evidence on this proposition was excluded on the hypothesis that it was incompetent for the defendant to show his probable future profits in the sale of the machines; that he could not show that if the price had not been reduced to $100 retail, he would have sold the twelve bicycles and made a definite profit on each one. The court was undoubtedly right so far as concerns this part of the proposition because it has been for a long time the established doctrine in this state that there can be no recovery of future or prospective profits, We think however the testimony was legitimate in one aspect of the case, and that there is an element which the jury had a right to take into consideration, and about which the court should have instructed them, which would bear on the right of the defendant to recoup damages. This comes from the plaintiff’s agree
There are numerous other errors assigned, and possibly some of them may he well laid, hut since the case must be reversed we regard these suggestions as ample.
We therefore reverse the case with directions to the court below to permit the defendant to amend his answer to such an extent as he may he advised.
Reversed.