Stubbs v. Montezuma Lumber Co.

45 Colo. 219 | Colo. | 1909

Mr. Justice Campbell

delivered the opinion of the court:

Plaintiffs sued defendant corporation to recover for the balance alleged to be due on an account for goods sold and delivered by them to it. The defendant answered, denying the indebtedness alleged, and by way of counter-claim, sought to recover judgment against plaintiffs for damages for a breach of contract as to certain specified items. This contract was made by defendant with another corporation which, it is admitted for the purposes of this case, is legally the same as plaintiffs, they being the real parties in interest. Thereby plaintiffs agreed, for a consideration and upon terms therein stated, to sell and deliver to defendant certain described personal property. This contract contained a promise which, as interpreted by both parties, authorized K. Van Antwerp to prepare a statement of account between the parties for certain lumber to be shipped in the business of the defendant, which, when made, is to be binding upon them. The counter-claim being traversed by plaintiffs, trial was to the court, which found the issues in favor of defendant, and entered judgment in its favor for a part of the demand under its counter-claim.

Upon this review plaintiffs say that the court erred in allowing to defendant certain of the items included in the counter-claim, in admitting and rejecting evidence, and declined to- give effect to that part of the contract which constituted Van Antwerp the agent of both parties in preparing the statement of account. It may be, as plaintiffs say, that the judgment of the trial court is wrong, but, if so, relief cannot be given upon this review. The court did not state the long and complicated account between the parties, and no request therefor was made by either of them. Upon a trial of such issues, whether the hearing is before the court or a referee, the account should be stated so that, if the judgment rendered thereon is to be reviewed, the appellate court may have a basis for intelligent action. It is wholly impossible to say what credits were given to plaintiffs on their account against defendant, or what items of defendant’s claim against plaintiffs were allowed. For aught that appears to the contrary, the very items of defendant’s claim against plaintiffs, which the latter say were not established by the evidence, were disallowed by the court, and all their own items against defendant were allowed. There is sufficient legal evidence in the record to sustain the findings, and the burden, which is always upon a dissatisfied party to show affirmatively that some prejudicial error was committed against him, has not been discharged by appellants on this appeal.

As to the alleged refusal of the court to give effect to the contract between the parties as to the statement of account, it is to be observed, first, that the court might have found from the evidence that no such statement as the contract contemplated was prepared or furnished by Van Antwerp, and that the failure in this respect was plaintiff’s fault. Moreover, if the purported statement of Van Antwerp, which was introduced in evidence, was properly admitted, there is nothing to show that the court did not give full effect to it, after making certain corrections therein which plaintiffs concede should be made. This is one of those cases in which the evidence is conflicting and where, even if an injustice lias been done, an appellate court will not, and satisfactorily to itself cannot, go through a complicated record and state an account between the parties which is not stated below, and thereupon ascertain upon which side the balance falls.

Judgment is affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Gabbert concur.