Purdy v. Deprez

39 Colo. 68 | Colo. | 1907

Chief Justice Steele

delivered the opinion of the court:

On August 5, 1901, the defendant in error filed her complaint in the district court of Arapahoe county, stating that Louise J. Purdy, on July 4,1891, “Borrowed of plaintiff and plaintiff loaned and advanced to defendant, at her special instance and request, four hundred and fifty dollars * ' # * That no part thereof has been paid, except, that within six years prior to the commencement of this action, sometime in the month of November, 1895, defendant paid to plaintiff eleven dollars and fifty cents on account of said indebtedness; and in the month of July, 1892, said defendant paid to plaintiff, on account of said indebtedness, eleven dollars and fifty cents; and there is now due from defendant to plaintiff four hundred and twenty-seven dollars, besides statutory interest”; and - praying for judgment against defendant for four hundred and twenty-seven dollars with interest and costs.

The answer denies the allegations of the complaint, .and states that the alleged cause of action did not accrue within six years immediately preceding the commencement of the action.

The jury returned a verdict in favor of the plaintiff and assessed her damages at the sum of six hundred and seven dollars. The case was taken to the court of appeals by writ of error.

The plaintiff in error relies upon four, assignments of error to reverse the judgment:

“1. The court erred in holding that there was sufficient evidence before the jury, when plaintiff rested, to justify its submission to the jury and a verdict for plaintiff, unless overcome by evidence to be introduced by defendant.

“2. Tbe court erred in permitting tbe jury to pass on tbe sufficiency of tbe evidence to sustain tbe claim that defendant borrowed from plaintiff in July, 1891, four hundred and fifty dollars, or any other sum.

“3. Tbe court erred in submitting to the jury tbe sufficiency of tbe evidence to justify a verdict upon tbe claim of plaintiff, that tbe defendant bad within six years from tbe date of tbe maturing of a loan from plaintiff to defendant made payment to plaintiff upon said obligation.

“4. Tbe court erred in refusing to instruct tbe jury, as requested by defendant, that tbe weight of the evidence in this case is to tbe effect that tbe alleged loan in this case was made by Hubert A, Deprez, and not by plaintiff, and that plaintiff bad no title .to tbe thing in action in this case, and that your verdict should be for tbe defendant. ’ ’

In effect, these. assignments relate only to tbe sufficiency of tbe evidence. All tbe other assignments of error are waived.

We are of opinion that there was sufficient evidence to submit tbe cause to tbe jury. Tbe plaintiff testified positively that she loaned to tbe defendant four bundled and fifty dollars on tbe fourth of July, 1891. One of tbe plaintiff’s witnesses testified that on tbe day tire defendant returned to Denver from Santa Fe she paid him, on account of interest on said loan, some time between September, 1895, and February, 1896, tbe sum of eleven dollars and twenty-five cents. It was shown that tbe day on which tbe defendant returned from Santa Fe was tbe 9th of November, 1895. While there was testimony to support tbe claim of tbe defendant that tbe money loaned was not tbe property of tbe plaintiff, but of her husband, there was also testimony to support the claim of the plaintiff that it was her money. If the jury believed the plaintiff’s witnesses, they were justified in returning a, verdict for the plaintiff and in finding that the note was not barred by the statute of limitations, the suit having been brought within six years from the date of the last payment of interest.

The judgment will be affirmed. Affirmed.

Mr. Justice Caswell and Mr. Justice Maxwell concur.