Breen v. Richardson

• Decision Date: 01 April 1883
• Citation: 6 Colo. 605
• Parties: BREEN v. RICHARDSON ET AL.
• Court: Colorado Supreme Court

6 Colo. 605

BREEN v. RICHARDSON ET AL.

Supreme Court of Colorado

April, 1883

Appeal from District Court of San Juan County.

MORRISON & CHARIST were copartners. Morrison died, and Charist, the surviving partner, to secure a debt of the firm, gave a trust deed upon certain real estate owned by them in the town of Silverton. Upon breach of the conditions of the trust deed the land was sold by the trustee, and the appellant Breen became the purchaser and was in possession. The appellees, as heirs at law of Morrison, brought suit to recover the undivided one-half interest in the land in controversy, and obtained judgment in the court below. To reverse that judgment Breen prosecutes this appeal.

Mr JOHN G. TAYLOR and MESSRS. HUDSON and SLAYMAKER, for appellant.

Mr. H O. MONTAGUE, for appellees.

BECK C. J.

It sufficiently appears from the transcript that an appeal was allowed from the judgment of the court on the same day on which the finding and judgment were announced. It also appears that the appellant complied with the terms imposed by the court, and that the appeal was perfected within the time prescribed by the court in the order allowing the appeal.

It is objected that no exception was reserved by the appellant to the judgment below, which, in case of a trial to the court without a jury, has repeatedly been held by this court to be necessary to authorize a review of the judgment upon the evidence. Exceptions were, however, reserved to certain rulings of the court during the progress of the trial, which have been assigned for error and may be considered. Colorado Springs Co. v. Hopkins, 5 Col. 206.

The first assignment of error questions the correctness of the ruling refusing to allow the witness Charist to testify as to the contents of the written articles of partnership.

This witness, who was the surviving partner of the firm of Morrison & Charist, testified that he destroyed the written articles of partnership after the decease of Morrison thinking he had no further use for them. He said he burned up several papers at the same time and this one among others. It does not appear that the paper was destroyed through any fraudulent motive, but rather through ignorance. And as to the competency of the witness to testify as to the contents of the document, we think he was qualified. The paper was read over to him and his partner Morrison at the time it was executed, and he swore that he remembered what it contained. This witness was a foreigner and seems to have misunderstood questions on cross-examination, to which he answered that he did not remember the contents...