Gomer v. Stockdale

• Decision Date: 11 February 1895
• Citation: 39 P. 355,5 Colo.App. 489
• Parties: GOMER v. STOCKDALE.
• Court: Colorado Court of Appeals

39 P. 355

5 Colo.App. 489

GOMER v. STOCKDALE.

Court of Appeals of Colorado

February 11, 1895

Error to district court, Arapahoe county.

Action by Philip P. Gomer against Laura E. Stockdale. There was a judgment for defendant, and plaintiff brings error. Reversed.

J.W Horner, for plaintiff in error.

John S Gibons and G.S. Raymond, for defendant in error.

BISSELL P.J.

During the year 1887, Laura E. Stockdale was the owner of some lands in Park county, and Matthew C. Jackson was a mill man engaged in making lumber. In August the parties made an agreement which, in respect to those terms essential to the decision substantially provided that Jackson might erect his mill machinery and such temporary structures as were essential to his milling operations on certain parts of the land. The owner also sold him the tree tops, and the cut and standing timber, with the right to fell the trees and reduce them to lumber. The consideration on Jackson's part was represented by 13 promissory notes, of $500 each, maturing monthly, beginning with the 10th of September, 1887. To secure payment of this paper, Jackson agreed to give a mortgage on the mill machinery. He executed this security. Jackson paid only a part of the note that matured in November, and defaulted on the other notes. Afterwards, by a written instrument, he sold and transferred to the present appellant, Gomer, all his rights and interest under the contract. At the time he ceased operations, there was considerable lumber at the mill, amounting to about 40,000 feet, and some 30,000 feet of unreduced logs, either at the mill or cut in the woods. Subsequent to the transfer, Gomer made demand for the lumber and the logs, and, when the owner refused to surrender, brought this suit. It is very peculiar in its form and in the structure of the pleadings, which do not seem to be well adapted to the protection or preservation of the defendant's rights. The plaintiff set up title to the lumber and the logs as a first cause of action, alleged the taking and removal by the defendant Stockdale, stated the value, and prayed judgment. The second cause of action was of the same nature, though it related solely to the mill and its machinery, and the temporary structures occupied by the men. In the answer to the first cause of action, the agreement was set up, the execution of the mortgage stated, and it was alleged on behalf of the defendant that the taking was under and pursuant to the authority conferred in the mortgage. There was a general denial, and another defense which is past easy apprehension. It was stated that the transfer to Gomer was without consideration, and the action was prosecuted in the interest of Jackson. As a defense, of course, it amounted to nothing, although it seems to have been of considerable force in the progress of the trial. So far as concerned the second cause of action, which related to the mill, the defendant denied generally. On these issues the parties went to trial. The plaintiff proved the amount of lumber and logs at the mill, in the woods cut and ready for reduction, and the value. He produced the transfer, and proved the consideration, which was apparently the settlement of some debts between Gomer and Jackson. The defendant introduced no testimony at all. There was an attempt, by the cross-examination of the plaintiff's witnesses, to show that, as between Gomer and Jackson, the transfer was not made in good faith, for a valuable consideration; that the assignment was colorable, and the suit prosecuted for Jackson's benefit. It was not pretended, nor was any evidence introduced to establish, that, because of the agreement between Gomer and Jackson, the defendant was prejudiced, or had any defense which would not have been available...