14 Colo. App. 219 | Colo. Ct. App. | 1900
Five trials in nisi prius tribunals and two appeals have not yet sufficed to determine the right of this controversy over the sale of some fruit trees of the agreed price and value of $200. We had hoped to be able on this hearing to finally conclude this litigation not only in the interests of the litigants but in the interests of the people. Unfortunately the case was not properly resolved nor the rules of law which govern the rights of vendor and vendee in the sale of personal property observed by counsel or by the trial court. The questions now suggested are wholly foreign to those heretofore presented to us, and the one on which the case now turns is widely different from that heretofore argued and considered. We are very frank to say the abstract does not contain the material requisite to this decision. We should have been quite at liberty to affirm the judgment but a doubt respecting the main legal proposition argued led to an inspection of the record to ascertain whether the entire proof really justified the affirmance. This brought the whole evidence before us and this has led to a conclusion respecting the judgment adverse to its legality, and we have concluded to decide the appeal thereon.
The first two decisions are to be found in the 1st Colo. App. 45 and in the 5th Colo. App. 172. Therein the sole question argued and determined related to the authority of an agent authorized to take orders for the future delivery of stock to bind his principal by the acceptance of chattels in payment for the stock sold when he had no specific or implied authority to this end. This is all there is in either of the two decisions, the only proposition discussed, and the only point
We now come to the matter which we have dug out of the bill, and which we use as the basis of this decision. The stock came by rail and reached Littleton on Saturday, the 3d of April. Of this Magnes was advised. There were no instructions to the railroad companj’- to deliver the stock except on payment of the contract price. Magües refused to pay and came to Denver the ensuing Monday, and interviewed one Michaels, who was the delivering agent of the nursery company. He demanded the stock and Michaels announced his readiness to deliver, but coupled with this readiness a demand for $200. Magnes absolutely refused to pay this sum, and said he would neither receive the stock nor pay for it, and the only condition on which he would accept it would be its delivery, and the allowance by the company of the unpaid value of the two horses which he had sold Wheeler, amounting to $200. The company refused to recognize Wheeler’s authority to take horses in payment for stock, would give Magnes no credit on his account or on the
We have fairly and fully, and we believe faithfully reproduced and condensed in substantial form the situation. ' To this situation we must now apply the law.
The appellant presents but two points on which he relies for a reversal. The first respects the use of the old bill of exceptions on the last trial, and the other the necessity of notice to the vendee of the time and place of sale, if the
The exception to the use of the old transcript of testimony or bill of exceptions is in our judgment not well taken. The case can in no manner be brought within the decision in the case of Emerson v. Burnett, 11 Colo. App. 86. The majority of the court held that the evidence of a witness who has removed from the state which was preserved in a bill of exceptions or by stenographer’s notes might be used on a subsequent trial. The reasons assigned are not at all applicable to the present situation. In this case the witnesses were nonresident and it was always open to counsel to sue out a dedimus and take their testimony. There was no sudden removal from the jurisdiction. The witnesses had already been brought here to testify and none of the considerations which permit the use of transcripts of testimony of absent witnesses would prevail or control. While this is true, we are quite of the opinion the nursery company had a right to use the evidence found in the transcript or bill of exceptions, and this for the single and sole reason that the parties made a stipulation which binds them on all trials. By agreement the transcript was made a part of the particular bill of exceptions which was offered in evidence on a former trial. On this trial it was stipulated between counsel that the transcript should be considered in evidence without a re-examination of witnesses and in case of appeal might be embodied in a bill of exceptions. We regard this stipulation as broad enough and full enough to be entirely effectual to make the transcript evidence on any future trial of the cause. As it must of necessity be construed it is the full equivalent of a stipulation to use the deposition of a witness and it is quite clear that such a stipulation controls all subsequent trials of the same cause and permits the use of the deposition, although there may be in the stipulation no direct agreement that the evidence may be used on any and all subsequent
The next respects the necessity to give notice to the vendee of the time and place of sale. This really brings up the whole question of the power and right of the vendor in the case of a sale of personal property. As ordinarily expressed his rights are three. He may store the property and sue the vendee for the price; he may sell the property and recover the difference between the price fixed in the contract and that at which the property was sold on the resale, or he may keep the property as his own and recover the difference between the contract price and the market value at the time and the place of delivery. These are his rights and he may exercise any one of them. From the preceding statement it is manifest the nursery company, as vendor, undertook to exercise the second of these privileges. It attempted to sell the stock and hold Magnes for the difference between what they received and the con tract price. He insists this privilege may not be exercised, or if it may, it was not so exercised as to give it the right to recover the difference. This he contends because there is nothing in the record to show that the
Appellant’s counsel insists that there is a necessity to advise the vendee of the intention to resell. On this proposition there is a more pronounced conflict in the authorities. We are not compelled to go to the verge of holding that there is no necessity to inform the vendee of the intention to resell, nor of holding that the vendor may dispense with this notice under any and all circumstances. All we intend to hold is, that under the circumstances disclosed by this record, the vendor was under no obligation to give the vendee this notice. Some of the cases declare there is no necessity to formally advise the vendee of the intention,-and others again disregard the proposition, apparently because the record shows the party was advised of the purpose when the demand was made on him to comply with Ms contract. Where such
We have now decided the bill of exceptions was admissible in evidence, that there was no necessity for notice of the intention to resell, and that usually none need be given of the time and place of sale. Notwithstanding these determinations we do not believe the judgment is right and we are compelled to reverse it though it necessitates a fifth trial and possibly a fourth appeal to this tribunal. In the end neither party will be benefited by the recovery whatever it may be, but both will probably have to expend largely more than the amount in controversy in order to end the dispute. It is not, however, for the courts to suggest an adjustment of differences, they can only decide controversies as they are presented.
Recurring to -tíre statement of the facts it will be observed the nursery company offered no evidence about the circumstances and conditions under which the sale was made, nor anything which tended to establish a necessity for it, or the propriety of it at the time it was made. The company failed to prove the fairness, of the price nor did they attempt to show an effort to make.a sale which would realize the highest price for the stock. Whether there was or was not a market price, whether there was a possibility to make a sale at another or greater price, whether the trees could have been preserved and a market made or a seller procured, all these things were left entirely unexplained by the company, nor was there otherwise any proof on which to base a judgment for the
Since this is true we are compelled to set aside the judgment and remand the cause for further consideration and the fifth trial which we may be permitted to hope will end this litigation. The judgment is reversed and tire cause remanded for further proceedings in conformity with this opinion.
Reversed.