Bowser v. Union Bag Co., Inc., 15192.

• Citation: 149 P.2d 800,112 Colo. 373
• Decision Date: 08 May 1944
• Docket Number: 15192.
• Parties: BOWSER v. UNION BAG CO., Inc.
• Court: Supreme Court of Colorado

149 P.2d 800

112 Colo. 373

BOWSER v. UNION BAG CO., Inc.

No. 15192.

Supreme Court of Colorado

May 8, 1944

Rehearing Denied June 19, 1944.

In Department.

Error to District Court, Weld County; Claude C. Coffin, Judge.

Action by the Union Bag Company, Inc., against C. Spencer Bowser doing business as the Bowser-Roderick Company, to recover the unpaid balance of an account owing to plaintiff. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Robert G. Smith, of Greeley, for plaintiff in error.

William R. Kelly and E. Tyndall Snyder, both of Greeley, for defendant in error.

BAKKE Justice.

This case involves a dispute concerning ownership and sale of several thousand burlap potato bags. Suit was brought by defendant in error, Union Bag Company, against plaintiff in error, C. Spencer Bowser, doing business as Bowser-Roderick Company, for the unpaid balance of an account allegedly owing by Bowser to the Union Bag Company. Trial was to the court without a jury, and judgment was for plaintiff, as prayed. Bowser seeks reversal. Reference will be made to the parties as they appeared below, or by name.

The parties involved are: Boam, manager of the Union Bag Company located at Idaho Falls, Idaho; Jones, who prior to September, 1939, was an independent potato dealer, located near Idaho Falls, and who had an office in the Union Bag Company building; and Bowser, a potato dealer of Eaton, Colorado.

The pertinent facts as they appear in the record are: In September, 1939, Bowser employed Jones to act as his agent, obtaining an Idaho broker's license for him; Bowser rented a warehouse at Ammon, about six miles from Idaho Falls, and set Jones up in business therein as his agent; at the time of this arrangement Jones had in his possession forty-eight bales of bags, to some of which he had title, the others belonging to Bowser; at this time Jones was indebted to plaintiff in the sum of approximately $1,000; plaintiff company is managed and operated by Boam; Jones arranged with Boam to have the above-mentioned forty-eight bales of bags stored in plaintiffs warehouse, and Jones agreed, as plaintiff avers, to apply the money received from the sale of the bags toward the payment of his account with plaintiff; at least half of these bags were the property of Bowser, i. e., bags that Bowser had purchased from the Bemis Bag Company and which he had forwarded to Jones. However, there was no segregation of the bags in plaintiff's warehouse.

As the shipping season progressed, and deed arose, Jones would tell Boam personally that he wanted some bags, or call him on the 'phone and order them, and they would be delivered at Bowser's warehouse in Ammon where one of Bowser's employees receipted for them. Invoices on the deliveries usually followed in a day or two and payment was regularly made by checks signed by Jones and drawn on the Bowser-Roderick account in the Idaho Falls Bank. In November, 1939, Jones ordered twenty-one bales of the bags to be delivered by plaintiff, without charge, to Bowser, explaining to plaintiff that an adjustment had been agreed upon between himself and Bowser. Whenever Jones made payment for bags for which invoices had been made, he always instructed Boam to credit his account with the same and transfer the charge to Bowser. Sometime later, Mrs. Bowser, who acted as bookkeeper for her husband, apparently became suspicious that Bowser was purchasing bags that he owned, and which he had purchased from the Bemis Company, and for which he had already paid. Acting upon that suspicion she went to Idaho Falls in January to investigate the matter. She testified that she told Boam's bookkeeper that her husband was paying for his own bags, but there is no evidence that she protested to Boam. At that time the Bowser-Roderick Company account was paid in full to December, 1939. Bowser demanded that Jones deliver to him the remainder of his (Bowser's) bags, and on or about February 3, Jones ordered them delivered, invoice for the same being rendered as usual. It was the refusal of Bowser to pay the amount of this last invoice, together with the preceding December balance, that prompted the filing of this legal action.

It may be conceded that at least some of the bags designated in the last few invoices were those purchased from the Bemis Company, and, hence, already were the property of Bowser. However, in order to prove this fact it was necessary for defendant to show how the bags came into Jones' possession. To refute this evidence, counsel for plaintiff offered evidence showing that Jones did possess a number of Bowser-Roderick bags which he had purchased from Ames Harris Bag Company in Portland, and that these bags were the ones he had delivered in November, and for which no charge was made. These bags the trial court found were the 'equivalent' of the ones for which charge was made under the last invoices, and, consequently, allowed plaintiff to recover, stating that if Bowser had any grievance he must look to his agent, Jones, for relief.

Predicated upon his twenty-two points specified as grounds for reversal, defendant contends: 1. Plaintiff was not entitled to recover under the complaint. 2. The evidence is insufficient to support the judgment. 3. The equivalent-value theory was erroneous. 4. The trial court misconceived the law of (a) agency, (b) account stated, an (c) estoppel.

1. Defendant's argument on the pleadings is, that the amended complaint as filed sets out the invoices, Exhibit A, under which payment was sought, and that plaintiff's recovery should be limited by such invoices, and since they covered the Bemis Company bags belonging to defendant, plaintiff was bound by his complaint. However, since the answer does not deny receipt of the bags covered by these invoices, and it was proven that they were delivered, and since the answer alleges fraud on the part of Boam, and mistake or inadvertence on the part of Jones, the trial court was acting well within his authority in hearing the whole matter. Assuming that he was correct in applying the 'equivalent-value' theory, plaintiff was entitled to recover on his complaint the amount established by its proof. In any event, the issues were developed by the amended complaint and answer, and we think there was no such violation of any of the rules of pleading as would prejudice the defendant.

2. The principal contention of counsel for defendant on the point of insufficiency of the evidence, is, that even under Boam's testimony, plaintiff is not entitled to any judgment except for $180, which amount defendant confesses is owing, and counsel argues strenuously that there is no conflict in the evidence, and no evidence upon which any proper judgment in excess of the amount confessed to be due can be...