213 P.2d 385 | Colo. | 1949
delivered the opinion of the court.
Defendant answered and counterclaimed in the following language: “Defendant admits signing a note on May 15, 1941, but alleges and states that said note was given in payment for a used luscombe BA plane [in all other places in the record the plane is referred to as a Luscombe 8A] which was purchased Máy 19, 1941, from the plaintiff for the sum of $2150.00. That the plaintiff stated as a fact that the said plane was in a good and perfect condition and free from any and all defects. That thereafter this defendant caused said plane to be checked at Denver, Colorado, and that said check revealed that the bulkhead of the said plane was cracked and this defendant expended the sum of $375.00 to repair said bulkhead.”
At the close of the trial the court, without objection from defendant, instructed the jury to return a verdict in favor of plaintiff on plaintiff’s complaint in the amount of $838.21. Judgment was entered in favor of plaintiff for this amount. The jury also returned a verdict on defendant’s counterclaim in favor of defendant for $375.00 and judgment was entered for this amount in favor of defendant and against the plaintiff. Plaintiff brings the cause here for review, seeking reversal of the judgment entered in favor of defendant, on the counterclaim.
There are seven specifications of points, the gist of which, to use the words of plaintiff’s counsel, is that, “* * * the defendant has wholly failed to plead or prove an action entitling him to recover damages for deceit or misrepresentation and the further fact that if there were pleadings or proof of misrepresentation or fraud there is a total failure to plead or prove by any recognized rule of law any recoverable damages on account thereof.”
Placing the most favorable construction on defendant’s evidence, it can not be said to establish more than that there was a possibility that the bulkhead was cracked at the time of the sale. This is not sufficient to prove a case. In Creamery Package Mfg. Co. v. Industrial Commission, 211 Wis. 326, 248 N.W. 140, the court said: “Mere possibilities leave the solution of an issue of fact in the field of conjecture and speculation to such an extent as to afford no basis for inferences to a reasonable certainty, and in the absence of at least such inferences there is no sufficient basis for a finding of fact. * * * There must at least be sufficient evidence to remove the question from the realm of conjecture. Lezala v. Jazek, 170 Wis. 532, 536, 175 N.W. 87, 89, 176 N.W. 238.” For cases in this jurisdiction bearing on the point see, Globe Indemnity Co. v. Stenger, 82 Colo. 47, 256 Pac. 658; McNulty v. Durham, 63 Colo. 354, 167 Pac. 773. In Reese v. Smith, 9 Cal. (2d) 324, 70 P. (2d) 933, the court used the following language: “If the existence of an essential fact upon which .a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fa!ct should suffer, and not his adversary. (Patterson v. San Francisco, etc. Ry. Co., 147 Cal. 178, [81 Pac. 531]). A judgment cannot be based on guesses or conjectures. (Puckhaber v. Southern Pac. Co., 132 Cal. 363 [64 Pac. 480]).”
In a recent federal case in this jurisdiction, Quay Franklin v. Skelly Oil Co., 141 F. (2d) 568 (10th Cir.) 153 A.L.R. 156, the same principle was recognized when the court said: “The verdict of a jury must be based upon something more than mere speculation and conjecture. It is not sufficient to show a set of circumstances bringing the theory of appellants within the realm of possibilities, nor can the theory itself furnish the deficiency; the evidence must bring the theory to the level and dignity of a probable cause. Gunning v.
The trial court properly instructed the jury that the burden was on the plaintiff to prove the amount alleged to be due him on the note, and that the burden was on the defendant to prove the • amount which he alleged was due him on the counterclaim. We believe that the jury failed to observe the latter instruction, and that it overlooked the fact that defendant hád failed to sustain the burden placed upon him of proving that the plane was defective at the time of the sale. Both allegation and proof are thus equally lacking. Under these circumstances, we are of the opinion that the trial court should either have granted a motion for directed verdict-in favor of plaintiff on the counterclaim at the close of the testimony, or, after the vérdict, should have entered judgment notwithstanding the verdict in favor of plaintiff on the counterclaim.
The judgment for defendant on his counterclaim is accordingly reversed, and the cause remanded with instructions to enter judgment in favor of plaintiff in .the amount of $838.21 without deduction by reason of the counterclaim.
Mr. Chief Justice Hilliard and Mr. Justice Moore concur.