Fincher v. Edwin M. Bosworth & Co.

• Decision Date: 15 June 1925
• Docket Number: 11000.
• Parties: FINCHER v. EDWIN M. BOSWORTH & CO.
• Court: Colorado Supreme Court

238 P. 38

77 Colo. 496

FINCHER v. EDWIN M. BOSWORTH & CO.

No. 11000.

Supreme Court of Colorado

June 15, 1925

Department 1.

Error to District Court, City and County of Denver; Jesse C. Wiley Judge.

Action by Edwin M. Bosworth & Co., a corporation, against Siewers Fincher. Verdict for defendant. Plaintiff's motion for judgment notwithstanding the verdict was sustained, and defendant brings error.

Affirmed.

See also, 230 P. 596.

Sabin &amp McGlashan, of Denver, for plaintiff in error.

Bartels & Blood, of Denver, for defendant in error.

BURKE J.

These parties appeared in reverse order in the trial court, and are hereinafter referred to as there. Plaintiff, a stock brokerage concern, brought suit against defendant, one of its customers, for $1,000 balance on account. Verdict was for defendant. Plaintiff moved for judgment notwithstanding the verdict. That motion was sustained. To review the judgment so entered defendant brings error.

The plaintiff alleged an indebtedness on open account and credits, which left due a balance of $1,000, and filed a bill of particulars. Defendant denied the indebtedness and set up a 'further defense,' to which a general demurrer was sustained. Defendant also filed a cross-complaint, which he now waives. The further defense was amended and a general demurrer sustained thereto. Another amendment was tendered and leave to file denied. Whether the court's rulings on the 'further defense' were technically correct we need not determine. Every defense available thereunder and all evidence applicable thereto received due consideration under the answer as it stood. Replication having been filed the cause was tried and the jury disagreed. On the second trial plaintiff requested an instructed verdict, which request was refused. The entire controversy converned a payment of $1,000 on January 3, 1922, which defendant asserted and plaintiff denied. The sole proof of this payment was a statement of account, furnished by plaintiff to defendant, showing it, and leaving due a small balance which defendant paid. and by virtue of which he claimed settlement. Plaintiff established by uncontradicted evidence, oral and documentary, that it had erroneously credited to defendant this payment which had been made by another, and in which defendant had no interest, and to which he asserted no claim save by reason of said erroneous credit. Such being the evidence, plaintiff's motion for a...