74 Colo. 463 | Colo. | 1924
delivered the opinion of the court.
For convenience The W. T. Rawleigh Company will hereinafter be referred to as plaintiff, and the plaintiffs in error as defendants.
The action was to recover of Houghton, as principal, and of the other defendants as guarantors, a balance of $1,584.64, on account of merchandise sold to defendant Houghton, pursuant to a written contract between plaintiff and Houghton, the performance of which was guaranteed by the other defendants. A copy of the contract
There is nothing on the face of the contract which supports the theory of the defendants. Four of the officers of the plaintiff company testified as to their method of doing business in Colorado and elsewhere throughout the United States. The testimony of these witnesses is uncontradicted. The secretary of the plaintiff company testified: “We sell none of our goods in the state of Colorado. They are all sold by delivering them f.o.b. at Freeport, Illinois, and after we have so placed them the goods belong absolutely to the customer. The customers who buy from us under contract are in business strictly for themselves, and are not agents or representatives of ours in any way, but are at liberty to sell their goods where they please, in any manner they please, and for what they please. Mr. Houghton was a customer of ours. He was buying from us on time. He furnished us a contract, signed by himself as principal and the other parties as sureties. He was conducting his own businéss, and we sold these goods to him outright, by delivering them f.o.b. at Freeport, Illinois. . He was at perfect liberty to sell his goods any place, to any person, in any manner, and for whatever price he might see fit. He was not representing us, nor was he our agent in any particular whatever, and not a dollar’s worth
The defendants did not testify. The only evidence given on behalf of the defendants was by defendants’ attorney, which was of small import. The burden of proving the affirmative defenses rested upon the defendants, who asserted the invalidity of the contract, to show how and why it was an unlawful contract. This they did not do, and the trial court so found. We think from the record the court could not have done otherwise.
The supersedeas is denied, and the judgment of the court is affirmed.
Mr. Chief Justice Teller’ and Mr. Justice Denison concur.