Crowley v. Green, 19414
| Decision Date | 02 October 1961 |
| Docket Number | No. 19414,19414 |
| Citation | 148 Colo. 142,365 P.2d 230 |
| Court | Colorado Supreme Court |
| Parties | D. J. CROWLEY, Assignee of Carpenter-Hetzler Co., a California corporation, Plaintiff in Error, v. George GREEN, Individually and doing business as Adams Packing Company and/or Adams Packing & Provision House; Rocky Mountain Provision Co., a Colorado corporation, Defendants in Error. |
Robert W. Caddes, James B. Radetsky and Charles J. Onofrio, Denver, for plaintiff in error.
Harding & Herrmann, Denver, for defendant in error George Green.
Plaintiff in error was the plaintiff in the trial court and brought the action as assignee of Carpenter-Hetzler Co., a California corporation, seeking recovery of the purchase price of two pneudraulic lifts. We will refer to the assignor corporation as the Seller and to defendants by name.
The Rocky Mountain Provision Company, which at the time of the trial was a defaunct and non-operating Colorado corporation, was made a defendant because the purchase was made in the name of that corporation and the purchase order was, in fact, made out to it. Also the lifts were transported in a truck of that company.
George Green, doing business under the names of Adams Packing Company and Adams Packing & Provision House, was made a defendant under the allegation that he was individually liable for the purchase price of the lifts under one or more of four alternative counts in the complaint. They were: 1. That the defendant Rocky Mountain Provision Company was the alter ego of George Green; 2. That the purported sale of the lifts by the provision company to the defendant Green was for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness owing by the provision company to the seller; 3. That the transfer of the lifts by the provision company to defendant Green was not in compliance with the Bulk Sales Act, C.R.S. '53, 18-1-1 et seq., and that Green is the receiver of the goods and accountable to plaintiff; 4. That the purchase by the provision company was ultravires, and that Green, as an officer, director and stockholder of said company and purporting to act for it, knew that it was ultra vires; that the corporation had no use for the merchandise; was not in the business of buying such merchandise for resale; that it did not have the ability to pay for the same, and that Green knew that fact; that Green intended to appropriate the goods to his own use, which intention he did not disclose to the Sellers; that he did, in fact, obtain the merchandise for his own use and to defraud the Sellers. Green's answer was a general denial and the affirmative defense of purchase of the merchandise for valuable consideration.
The provision company did not appear at the trial, and suffered a default judgment. It makes no appearance in this court, hence as to it the judgment is final.
As to defendant Green, the court found that the Seller's claim against him individually or as doing business under the names alleged in the complaint, should be denied. Judgment in favor of Green followed, to which this writ of error is directed.
The court made findings as follows:
1. That at all times material herein George Green was acting in the capacity as an officer and director of the Rocky Mountain Provision Company;
2. That at no time did he act individually or for and in behalf of the Adams Packing Company or the Adams Packing and Provision House in the purchase of the two pneudraulic lifts;
3. At no time material herein did he contract for himself individually or for the Adams Packing Company, or the Adams Packing and Provision House in the purchase of the said pneudraulic lifts.
The court made no findings on Green's affirmative defense of bona fide purchaser for value of the lifts from the provision company.
The various assignments of error may be resolved under the single question whether the judgment of the trial court is so contrary to the weight of the evidence and the inferences to be drawn therefrom as to compel a contrary conclusion. We hold at the outset that the evidence does not support the judgment; that the conflicts therein are not of material matters; that the court was led into error by adopting the erroneous assumption that because Rocky Mountain Provision Company was not solely owned by Green (he being an officer and director thereof) that in the transaction he was acting for the company and not for himself.
The evidence was that the Rocky Mountain Provision Company was organized primarily for the purchase and transportation of meat and food products, but did have the general powers to purchase any type of goods and merchandise and to buy, sell, deliver and deal in food products of all kinds, and to buy, sell, lease and rent equipment for the shipment of food products as well as other types of merchandise or equipment. Nevertheless it was established that in the operations of...
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