Dando Co. v. Mangini, 14508.

• Decision Date: 06 January 1941
• Docket Number: 14508.
• Citation: 107 Colo. 170,109 P.2d 1055
• Parties: DANDO CO. v. MANGINI.
• Court: Colorado Supreme Court

109 P.2d 1055

107 Colo. 170

DANDO CO. v. MANGINI.

No. 14508.

Supreme Court of Colorado, En Banc.

January 6, 1941

Rehearing Denied Feb. 3, 1941.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Ann K. Mangini against the Dando Company for conversion of a note and trust deed, wherein defendant filed a cross-complaint. To review a judgment for the plaintiff defendant brings error.

Reversed and remanded, with instructions to enter judgment for defendant.

BAKKE J., HILLIARD, C.J., and FRANCIS E. BOUCK, J., dissenting.

B. F. Reed and R. H. Walker, both of Denver, for plaintiff in error.

J. W Kelley and Charles E. Coughlin, both of Denver, for defendant in error.

YOUNG Justice.

This case is Before us for the second time. The opinion on the former review, Mangini v. Dando Company, 101 Colo. 453, 74 P.2d 675, contains a statement of the pleadings and the evidence as of that time, and should be read in connection with our present pronouncement. Upon retrial the plaintiff had judgment, and the Dando Company prosecutes a writ of error to secure a reversal. Numerous errors are assigned, of which we deem it necessary to consider but two, namely, the first and fifth, which are as follows:

'1. The court erred in overruling the motion of the defendant below, the plaintiff in error, for a directed verdict in favor of the defendant.'

'5. The court erred in not holding and ruling upon defendant's motion for a directed verdict that the agreement upon which the plaintiff relies was made by the plaintiff and Ramon Solis for the purpose of deceiving the defendant corporation itself, and with the understanding that knowledge of it should be withheld from the defendant corporation, and in not holding and ruling that such agreement was void and could not have been the agreement of the corporation.'

The matter here urged most strenuously as a ground for reversal of the judgement, namely, that the contract is violative of the public policy of the state and that the courts should not lend their aid to its enforcement, was not suggested when the case was formerly Before us, and any language used in our former opinion was not intended to apply and should not be construed as applying to the propriety of the court lending its aid to the enforcement of such a contract. The trial court evidently was of the opinion, and with some justification therefor in view of the language used in the opinion, that we passed upon that phase of the case. We were then of the opinion that under the evidence as presented, such issue was not necessarily involved, nor did it appear that the action of the plaintiff necessarily constituted a fraud against, or that it proximately resulted in damage to, the Dando Company.

We are aware of the rule--which we recognize--that the pronouncement of an appellate court on an issue in a case presented to it becomes the law of that case, but the rule does not extend to matters other than those which in fact were decided upon issues presented and considered in the initial review, and for this reason we have pointed out the limitations that should be placed upon our former adjudication.

There was in the case as first reviewed evidence of a contract between plaintiff and Ramon Solis to the effect that plaintiff should make certain investigations for Solis and that in consideration therefor he would pay off a note secured by a deed of trust on her home. Plaintiff testified that she made the investigations; that Solis liquidated the note which, with the mortgage securing its payment, he gave to her; and that the paid note and mortgage were in her possession and control so that she might have released the mortgage or not as she saw fit. The evidence disclosed that the note was paid with a Dando Company check drawn by Solis, but if the latter had no authority so to use company funds that was a matter for an accounting between him and the company, since the use of the company's money was not shown to have been contemplated by the contract between plaintiff and Solis. Under the recorded evidence previously presented at this point the first contract appeared to have been consummated. Whether plaintiff had knowledge of an assignment of the note by the Behneman Company to the Dando Company was not material. That was procured by Ramon Solis, not by her. That the note should be delivered to Ramon Solis to be kept in the Dando Company files was not agreed upon between plaintiff and Ramon Solis, as the evidence was presented at the first trial, until after the contract between her and Solis was completed by his payment of the note. Up to this point the conduct of plaintiff, as then disclosed by the evidence, is explainable on a theory not necessarily involving any fraudulent intentions, purposes, or effects, as related to the Dando Company or any of her possible future creditors. In the first trial plaintiff testified that it was upon the subsequent suggestion of Ramon Solis that she delivered the papers to him to be placed in the files of the Dando Company. There was nothing in the record at that time to indicate that the fact that the note was paid was to be concealed from others interested in the affairs of the Dando Company. Under such state of the record nothing that plaintiff did could be construed as being in any way responsible for the use of the company's money by Ramon Solis to pay her note. As far as she was concerned, a jury reasonably might have inferred that the subsequent delivery of the note to the company and her subsequent action with respect thereto did not have the effect of placing it in any other or different position financially, or that such action was the proximate cause of any damage to it; that the company therefore neither gave consideration for a bailment of the paid note nor suffered damage referable to any fraudulent intentions or actions of the plaintiff with respect thereto. Aside from the question of public policy, not argued on the former review as previously noted, plaintiff's action in paying interest with money which she says was given to her by Ramon Solis, and in executing an extension, did not injury the company or place it in any worse position than if she had done neither or had kept the note and mortgage in her own desk where she first lodged them. Aside from any question of the contract being violative of public policy, there was a clear case for the jury under the evidence in the record first presented here. Though the nature of the story told by plaintiff on the former trial was not calculated to impress the court with its truth, the determination of its truth or falsity was the province of the jury.

The variation between plaintiff's testimony in the first trial and the second is not great, but the record Before us contains statements and admissions which, in the light of the different inferences which now properly might be drawn from other facts in evidence here and on the first trial, makes the conflict of vital significance in a consideration of the question of the legality of the transaction discolosed.

The testimony of the plaintiff, as given in the second trial and contained in the present record, contains her statement that it was understood and agreed between Ramon Solis and herself Before he procured the note and mortgage from the Behneman Company that they should be kept in the files of the Dando Company as an apparently valid and subsisting obligation, and that Solis should not disclose to any others interested in said company that it was a paid note to be returned to her on demand and was not in fact a valid and subsisting obligation. As has been mentioned, such was not the testimony of plaintiff on the first trial, nor were such facts reasonably to be inferred from her testimony given at that time. That...