Garbarino v. Union Sav. & Loan Ass'n

• Decision Date: 20 January 1941
• Docket Number: 14635.
• Citation: 107 Colo. 140,109 P.2d 638
• Parties: GARBARINO v. UNION SAVINGS & LOAN ASS'N.
• Court: Colorado Supreme Court

109 P.2d 638

107 Colo. 140

GARBARINO v. UNION SAVINGS & LOAN ASS'N.

No. 14635.

Supreme Court of Colorado, En Banc.

January 20, 1941

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Action by Union Savings & Loan Association against P. J. Garbarino individually and doing business as Cahn-Forester Electric Company, on a check drawn by defendant to plaintiff's order, on which defendant had stopped payment. Judgment for plaintiff, and defendant brings error.

Affirmed.

OTTO BOCK, J., dissenting.

John W. Shireman, Norma L. Comstock and Norman H Comstock, all of Denver, for plaintiff in error.

Charles R. Enos, Henry S. Sherman, and Joseph L. Morrato, all of Denver, for defendant in error.

KNOUS Justice.

Herein reference will be made to the parties as they appeared in the trial court, where plaintiff in error was defendant and defendant in error was plaintiff. The complaint alleged that on or about August 12, 1938, defendant, under the trade name of Cahn-Forster Electric Company, made and delivered to the plaintiff for a good and valuable consideration a check for the sum of $1,000 payable to the order of plaintiff; that thereafter, on August 14th, defendant stopped payment on the check and the bank upon which it was drawn has since refused to pay the same; that plaintiff demanded of defendant payment of the said sum of $1,000, which defendant refused. The answer set up four defenses. In the first defense defendant, substantially admitting other allegations of the complaint, denied that the check was made, executed and delivered for a good and valuable consideration, or for any consideration whatever. The second defense alleged that defendant made and executed the $1,000 check as an earnest payment on the purchase price of $27,500, which he had offered for an apartment house belonging to plaintiff, upon an oral agreement, under which plaintiff should have until the evening of Saturday, August 13, 1938, to accept or reject such offer, and that plaintiff had failed to accept the offer within such time, as a result of which there was no consideration for the check. The statute of frauds was interposed as a third defense. As a fourth defense defendant alleged that his offer to purchase was withdrawn by him Before acceptance by plaintiff. The replication controverts the affirmative defenses. On a trial of the issues thus presented--the evidence as to the first, second and third defenses being conflicting--the case was submitted to a jury which returned a verdict in favor of plaintiff. To review the judgment entered thereon defendant prosecutes this proceeding in error.

Defendant, who appears here by counsel other than those who tried the case below, seeks reversal upon four grounds.

First, it is said the court erred in giving conflicting instructions on the law relating to offer and acceptance. Consideration of this contention is precluded by the circumstance that on the trial defendant made no objections whatsoever to the giving of any of the instructions concerning this branch of the case. Our rule 7 requires the making of specific objections to instructions given if error assigned thereon is to be considered on review, and in our decisions we have consistently adhered to this rule. Schreiber v. Burton, 81 Colo. 370, 256 P. 1; Boggs v. Lumbar, 75 Colo. 212, 225 P. 266; Bijou Irrigation District v. Cateran Land & Livestock Co., 73 Colo. 93, 213 P. 999.

It is urged secondly that in effect the judgment improperly required defendant to forfeit the amount of the check involved when no forfeiture was provided by the contract. In deliberating on the merit of this point it must be borne in mind that all four of the defenses pleaded are grounded upon the theory that no valid contract ever was consummated between the parties. Obviously to contend as defendant now does, that recovery could not be had because the check was delivered under a contract which did not provide for a forfeiture, assumes the existence of a contract which the pleadings as formulated deny. Of necessity such matter only could be affirmatively pleaded by way of confession and avoidance, which was not done here. Counsel for defendant concede that ordinarily such would be the requirement, but assert that the extraordinary circumstance is furnished by the following incident, which occurred during the direct examination of defendant:

'Q. Was anything said in any of your conversations relative to this thousand-dollar check being forfeited in case the deal did not go through? A. No; Mr. Cooper----

'Mr. Enos: I object, your Honor, as incompetent and irrelevant, and contrary to the testimony of this defendant, as to the check given, on which he wrote that it was a deposit on the purchase price of $27,500. The check speaks for itself; he can not impeach his own testimony.

'The Court: This inquiry is about what he said to Cooper.

'Mr. Reid: This is as to any conversation between him and Cooper relative to that matter.

'Mr. Enos: I will withdraw the objection.

'Mr. Reid: Read the question. (Last question read.)

'Q. In your conversation with Mr. Cooper. A. No, there was not. He asked me to make this check so as he could have it and he could hold it----

'The Court: You have already testified to that.

'The Witness: Yes.' Citing National Mutual Fire Ins. Co. v. Sprague, 40 Colo. 344, 92 P. 227, 229, defendant argues that by withdrawing its objection the plaintiff waived the failure of the defendant to plead this affirmative defense and that as the result thereof the court should have instructed the jury on the law relating to the recovery of forfeitures. The court refused to give defendant's tendered instruction on this subject for the reason that 'under the issues in this case the question of forfeiture is not involved.' We are of the opinion that the trial court was right in so proceeding and that no semblance of a waiver occurred through the incident above detailed. Such evidence was clearly admissible to contradict the statements of Cooper, an agent for plaintiff, who had previously testified concerning his conversations with the defendant, and it would seem clear that the objection was withdrawn on this premise. In National Mutual Fire Ins. Co. v. Sprague, supra, as stated in the opinion, the 'issues were mutually disregarded' by both parties and extensive evidence was introduced by each, without objection, on the issue which the defendant, who was the appellant, should have presented by appropriate allegations in his answer. We there determined that defendant thus had waived the necessity of any particular pleadings and that the trial court might properly instruct in relation to the field of inquiry covered by the evidence. The opinion recognizes the general proposition that instructions should be based on the issues made by the pleadings and evidence introduced thereunder. It expressly limits the holding to the peculiar circumstances of that case which are not paralleled or even approached by those in the case Before us.

Thirdly defendant claims that recovery should be denied because the obligation of defendant to pay the cash purchase price became dependent upon, and concurrent with, the covenant to convey 'free and clear,' which defendant asserts plaintiff could not perform. It may be questioned whether any assignment of error furnishes a basis for this argument. On the trial defendant advanced no such theory in his motion for nonsuit; he tendered no instruction on the subject; nor did the answer allege that the property could not be conveyed 'free and clear.' The defendant contends that the latter deficiency was cured and the issue raised by plaintiff's allegations in the replication to the effect that at all times it had been ready, willing and able to convey the apartment building to defendant upon the terms of the defendant's offer. Without reference to the soundness of the position of defendant on this question of pleading, and disregarding the state of the record first mentioned, we are of the opinion that in any event, under the evidence...