Burson v. Bogart

• Decision Date: 11 May 1903
• Citation: 72 P. 605,18 Colo.App. 449
• Parties: BURSON v. BOGART.
• Court: Colorado Court of Appeals

72 P. 605

18 Colo.App. 449

BURSON v. BOGART.

Court of Appeals of Colorado

May 11, 1903

Appeal from District Court, Costilla County.

Action by William C. Bogart against Chalmers Y. Burson. Judgment for plaintiff, and defendant appeals. Reversed.

Ira J. Bloomfield, for appellant.

James W. Shields, for appellee.

MAXWELL J.

This case originated in the court of a justice of the peace of Costilla county, where judgment was rendered in favor of the plaintiff. Defendant took an appeal to the county court. By stipulation the case was transferred to the district court of Costilla county, where the case was tried to a jury, which rendered a verdict against the defendant for the sum of $156.40. Motion for new trial was overruled, and judgment entered upon the verdict. Defendant appeals.

There being no pleadings in the case, the issues must be determined from the facts as developed upon the trial. It appears that the suit was to recover upon an account for goods sold and delivered by the plaintiff Bogart, to one Cobb, under the following circumstances: The account was opened June 22, 1898, in the name of R.M. Cobb and wife, and was so charged and entered upon plaintiff's books. Against the objection of defendant, plaintiff testified as follows: "Q. When Mr. Cobb came to you for goods, what, if anything, did he say about Mr. Burson authorizing him to get goods? A. Mr. Burson told him to buy the goods, and that he would pay for them, either at my place or any place." About the time the account was opened or, at any rate, July 1, 1898, Cobb became the tenant of Burson, appellant, under a written lease containing the usual covenants, upon an annual rental "of two-fifths of all crop grown." Burson went East about September 7, 1898 and did not return until May, 1899, during all of which time Bogart was selling the goods to Cobb, for the recovery of the price of which this action was brought. Upon Burson's return in May, 1899, he was presented with the account, and a demand made for a settlement of the same. Several such demands were made, and several interviews were had between Bogart and Burson with reference to the matter. At one of these interviews two women who testified at the trial were present, and, while there are slight discrepancies in their testimony, neither Bogart nor these two witnesses testified that Burson ever admitted that Cobb was his agent for the purchase of the goods; and, on the contrary, Burson testified positively that Cobb was not his agent, and that he had never so admitted. The testimony of the two witnesses above referred to was to this effect: "Mr. Bogart said to Mr. Cobb, 'Wasn't Mr. Burson to pay the bill?' and Mr. Cobb said, 'Yes.' Mr. Burson was present at the time." Attempt was made to prove the ratification of Cobb's agency by Burson, but the testimony fell far short of accomplishing the purpose. Testimony was also introduced to the effect that Cobb took several wagon loads of wheat from Burson's granary, which he used as seed wheat upon Burson's land, and for which he subsequently settled with Burson; that he bought seed oats, which Burson paid for and charged to Cobb; that he drove several head of cattle, the property of Burson, from one pasture to another. This testimony was introduced, as it seems, for the purpose of establishing the fact that Cobb was acting as the general agent of Burson during his absence. Burson positively denied any such agency, and denied that Cobb was his agent for any purpose whatever, except such agency as might arise by operation of law out of the relation of landlord and tenant. Bogart testified that he presented the account to Burson shortly after his return from the East, and was allowed to testify, against the objection of defendant, that he (Burson) "did not seem to object to them." After Burson's return from the East, $100 was paid by Cobb on the account. This payment was made by means of a bank check drawn by Burson to the order of Cobb, indorsed by Cobb, delivered by him to Bogart, and by Bogart applied as a credit upon the account. Cobb was not a witness at the trial, as he had left the country at that time.

The above sets forth substantially all of the testimony introduced at the trial to establish the fact that Cobb was...