Gutshall v. Cooper

• Decision Date: 04 June 1906
• Parties: GUTSHALL v. COOPER.
• Court: Colorado Supreme Court

86 P. 125

37 Colo. 212

GUTSHALL v. COOPER.

Supreme Court of Colorado

June 4, 1906

Appeal from District Court, Montrose County; Theron Stevens, Judge.

Action by E. Cooper against S. P. Gutshall. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Story &amp Story, for appellant.

F. D Catlin, for appellee.

MAXWELL J.

The complaint alleged that June 24, 1900, an account was stated between plaintiff and defendant from which a balance of $342.81 was found due plaintiff from defendant, which defendant agreed to pay. The answer was a general denial and a further defense and cross-complaint, to the effect that defendant and one Carr in January, 1900 entered into a verbal contract whereby Carr agreed to cut and deliver to defendant's sawmill all the timber above 10 inches in diameter standing upon a certain tract of land adjoining the mill, for which defendant was to pay Carr $2.50 per 1,000 feet; that Carr, with the consent of defendant assigned and turned over the contract to plaintiff; that plaintiff abandoned such contract and refused to carry out and complete the same according to the terms thereof to the damage of defendant. A replication put in issue the affirmative allegations of the cross-complaint. The verdict and judgment were for plaintiff, appellee here, for $342.81, and interest from June 24, 1900.

Two grounds are urged for a reversal of the judgment: (1) Failure upon the part of plaintiff to prove an account stated; (2) an instruction taking from the consideration of the jury the affirmative defense pleaded in the cross-complaint.

1. From the record it appears that there was evidence sufficient to justify the court in submitting to the jury the question of whether or not an account was stated between the parties as alleged in the complaint. The jury was fully and fairly instructed as to the law upon this proposition. No complaint is made by appellant of any instruction given. The verdict of the jury is conclusive.

2. Instruction No. 2 given by the court of its own motion was. 'The evidence did not sustain the allegation of a contract between these parties to deliver any certain amount of logs. Consequently that is eliminated from the case by the court, and you are not to consider that. The only thing that you are to consider in this case is as to whether or not on the 24th day of June, 1900, an account was stated between these parties, and whether the defendant agreed to pay the amount that was stated at that time.' This instruction proceeds upon the theory that there was an allegation of a contract between the parties to deliver a certain amount of logs. There was no such allegation in the cross-complaint. As stated before, the contract with Carr was to cut all the timber on a certain tract of land, which contract was turned over to plaintiff. The undisputed evidence was to the effect that Carr's contract with defendant required him to cut and deliver to the mill all the timber above 10 inches in diameter upon a certain tract of land; that Carr, with the consent of defendant, turned over this contract to the plaintiff, explaining to the plaintiff or his agent the terms of the contract; that the timber cut and delivered by plaintiff was under the Carr contract, and not otherwise. Before plaintiff commenced work he sent one Cless as his agent to examine the timber and...