Divine v. Western Slope Fruit Growers' Ass'n

• Decision Date: 07 March 1921
• Docket Number: 9788.
• Citation: 196 P. 329,70 Colo. 14
• Parties: DIVINE v. WESTERN SLOPE FRUIT GROWERS' ASS'N.
• Court: Colorado Supreme Court

196 P. 329

70 Colo. 14

DIVINE v. WESTERN SLOPE FRUIT GROWERS' ASS'N.

No. 9788.

Supreme Court of Colorado

March 7, 1921

Error to District Court, Mesa County; Thomas J. Black, Judge.

Suit by the Western Slope Fruit Growers' Association against Dr J. H. Divine. Judgment for plaintiff, and defendant brings error.

Affirmed.

William H. Gabbert, of Denver, and McMullin &amp Sternberg, of Grand Junction, for plaintiff in error.

S. N Wheeler, of Grand Junction, and S. Harrison White, of Denver, for defendant in error.

BAILEY J.

This suit has now been before our courts for more than nine years. It was begun in the County Court of Mesa County, appealed to the District Court, thence to the Court of Appeals (27 Colo.App. 368, 149 P. 841), retried and brought to this court, where the judgment was again reversed and remanded (64 Colo. 523, 173 P. 426). Defendant then offered for filing a third amended answer, and three so-called supplemental answers. The court denied leave to file these, and rendered judgment for plaintiff. That judgment is now here for review. The parties are here referred to as in the trial court.

The action is based upon a promissory note given by defendant for shares of stock in the plaintiff company. The original defenses were, in substance, first, that the note was without consideration; second, that the assumed consideration was the right to ship all fruit grown by defendant through the association, until profits should pay the note, that the association was unable, and had failed and refused, to handle his fruit; third, that the note was in fact an accommodation note, to be used as collateral to a company note, which note had been paid before the commencement of the action; and fourth, that the association was a mutual association of fruit growers to secure profitable marketing of their fruit, and that defendant was induced to sign the note by the statements of one of its directors that the shares would be paid for out of profits; further, that plaintiff lacked adequate facilities for handling fruit, for which reason defendant notified the association he would discontinue shipments. Also, that contrary to agreement, plaintiff shipped fruit for persons not members.

After a second trial in the District Court upon these issues, plaintiff moved for a directed verdict, which was denied, and defendant had judgment. The case was then brought here for review. This court, in Western Ass'n v. Divine, 64 Colo. 523, 173 P. 426, reversed that judgment, declaring, among other things, the following:

'The evidence wholly fails to support the defense that the note was without consideration, or given as an accomodation. The defendant's or given as an accommodation. The defendant's to evidence his indebtedness for the stock for which he subscribed. That the stock, because of the matters of which defendant complains, is not of the value to him which he expected it to be, is immaterial in this case, there being no fraud charged or proved.

'It may be observed, also, that defendant makes no claim that he has been directly damaged by anything done or omitted to be done by the association.

'Waiving the question of the admissibility of parol evidence concerning the giving of the note, and giving the evidence full consideration, it is evident that there was no agreement by which the terms of the note were changed. Under these circumstances the right to recover was clear, and the overruling of the plaintiff's motion for a directed verdict was error.

'The judgment is therefore reversed, and the cause remanded for further proceedings in harmony with the views above expressed.'

Upon that opinion, it was plainly then and there the duty of the District Court to have entered judgment for plaintiff. Still contesting, however, the defendant almost a year after remittitur was transmitted, tendered for filing the pleadings above mentioned. The defenses therein set up were in the main that the association had passed a bylaw, without the knowledge of defendant, to the effect that only stockholders who shipped fruit could participate in profits. Defendant also prayed an accounting and on behalf of himself and other stockholders similarly situated, moved the appointment of a receiver as the association had departed, as was alleged, from its original purpose, and was being conducted in the interests of a few only of its members. Also vague, indefinite and wholly insufficient allegations of misrepresentations and fraud in procuring his signature to the note were injected.

A careful reading of the record shows that these defenses are mere repetitions in modified form of those previously urged. They have appeared in substance, from time to time, in different guises, since the beginning of the litigation. The only allegations which even tend to offer new matter...