Fairbanks v. Kent

• Decision Date: 14 January 1901
• Citation: 16 Colo.App. 35,63 P. 707
• Parties: FAIRBANKS et al. v. KENT et al.
• Court: Colorado Court of Appeals

63 P. 707

16 Colo.App. 35

FAIRBANKS et al. v. KENT et al.

Court of Appeals of Colorado

January 14, 1901

Appeal from district court, Arapahoe county.

Action by E.H. Kent and another, doing business under the firm name and style of Kent & Stuchfield, against Fairbanks, Morse &amp Co. From a judgment for plaintiffs, defendants appeal. Affirmed.

Charles H. Dyett, for appellants.

Thomas & Thomas, for appellees.

BISSELL, P.J.

Kent &amp Stuchfield brought this suit against Fairbanks, Morse & Co. to recover for the conversion of a lot of stoves. The case was tried to the court without a jury, and the court found for the plaintiffs, and they had judgment for $125.80 wherefrom Fairbanks, Morse & Co. prosecute this appeal. The history of the case, briefly, is this: One Hudlow was in business in Victor, and had bought hardware from Kent &amp Stuchfield, who were carrying on this business in Denver. Some stoves were purchased, and those in controversy were among the number. Hudlow probably became embarrassed, and for that or some other unexplained reason undertook to settle his account with Kent & Stuchfield by reselling and turning the stoves over to them. The bill of sale from Hudlow to Kent &amp Stuchfield was duly prepared and executed, and its terms and conditions were carried out by delivery by Hudlow to their agent in Victor. The stoves were taken to contiguous premises in a room which had been rented for the purpose, and there stored and locked up. After this transaction was completed, and without any preliminary talk about its regularity, Fairbanks, Morse & Co. brought an attachment suit against Hudlow, and in executing the writ proceeded to break down the door and seize the stoves and sell them. Immediately thereafter, Kent & Stuchfield brought a replevin suit, in which the attachment plaintiffs gave a redelivery bond, and the property never repassed into Kent & Stuchfield's possession. This replevin suit thus begun was ultimately dismissed before trial, and consequently cuts no figure in the case, except as showing that the property passed into the possession of the appellant. The appellant's suit, of course, proceeded to judgment against Hudlow, and the attachment was sustained. In the present suit the bill of sale was set out in the complaint, the inventory of the goods stated, the seizure and conversion of the goods laid, and there was a prayer for the conversion.

When the trial came on the bill of sale was produced, and properly proven, to show Kent &amp Stuchfield's title. Subsequently a witness was offered, who prepared the bill of sale, and had it executed, who was present at the time the stoves were delivered thereunder, and who rented the store, and he gave evidence that the stoves were taken out and put into this independent room, and locked up, and that subsequently the constable and the attorney for the defendants went there, and broke the door down and took the stoves out and that they were the stoves involved in the replevin suit and in the present action. One of the firm of Kent & Stuchfield substantially...