Hill v. Fruita Mercantile Co.

• Decision Date: 02 March 1908
• Citation: 42 Colo. 491,94 P. 354
• Parties: HILL v. FRUITA MERCANTILE CO.
• Court: Colorado Supreme Court

94 P. 354

42 Colo. 491

HILL v. FRUITA MERCANTILE CO.

Supreme Court of Colorado

March 2, 1908

Appeal from Mesa County Court; Walter S. Sullivan, Judge.

Action by the Fruita Mercantile Company against W. J. Hill. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee November 4, 1903, in the county court of Mesa county, Colo., to recover the purchase price of a car load of potatoes alleged to have been sold and delivered to appellant on August 20, 1903. At the time of the sale and the commencement of the action appellant was living at Cripple Creek, Teller county, Colo. Prior to the date of purchase the appellee telegraphed the appellant that it had choice potatoes for sale at a certain price per 100 pounds. On August 20, 1903, appellant telegraphed appellee as follows: 'Dated Cripple Creek, Colo. To Fruita Mer. Co. Fruita, Colo. Will pay one twenty-five if shipped today. Ans quick. W. J. Hill.' Upon receipt of this telegram appellee wired appellant as follows: '8-20-1903. W. J Hill, Cripple Creek. F. G. E. two two one today. Your bid. The F. M. Co.' The letters 'F. G. E.' stand for the initials, and 'two two one' is the number of the car in which the potatoes were shipped. In pursuance of these telegrams, the potatoes were loaded into a car of the Denver & Rio Grande Railroad Company at Fruita on the afternoon between 1 and 6 o'clock, of the 20th of August, 1903, and the car delivered to the railroad company. The following bill of lading was delivered by the company to the appellee:

Shipping Receipt.

The Denver & Rio Grande Railroad Company.

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Consignor, marks, Weight

and Articles. (subject to correction).

destination.

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W. J. Hill Std. Potatoes 20,000

Cripple Creek O. R. S. L. & C.

Colorado T. E. E. 18220.

Via D. & R. G.

Cr. & C. S.D.

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A. A. Betts, Agent.

The Denver & Rio Grande Railroad was the only railroad over which the potatoes could be shipped from Fruita. A charge for the potatoes was made on the books of the appellee on August 20th, and a bill for the same mailed to him at Cripple Creek. On August 24, 1903, the potatoes not having arrived at Cripple Creek, the appellant wired the appellee that he would not receive them, and on September 20, 1903, he wrote the appellee the following letter: 'Cripple Creek, Colo., 9-20-1903. Fruita Mer. Co., Fruita, Colo.--Gentlemen: Your letter to hand. My reason for not accepting the car of potatoes was the delay by the R. R. Co. of getting them in here. I place no blame upon you people. The R. R. Co. is to blame entirely. I did not ask them the cause of the delay. They are responsible for my not taking the car of potatoes. I wired your house the day before they reached this district that I could not accept them on account of the delay. Yours truly [Signed], W. J. Hill.' The appellee received notice from the railroad company that it had delivered the car load of potatoes to Mr. A. K. Barwise, of Cripple Creek, and that it had received from him about one-half of the price charged for the potatoes. There is no evidence as to the disposition of this money by the company. On December 26, 1904, an affidavit in attachment was filed, and a writ of attachment issued. Appellant traversed the affidavit, and, after hearing, the court sustained the writ. Thereafter appellant filed a motion to strike the affidavit and bond in attachment from the files, which motion was denied. The cause was tried to the court, and judgment rendered in favor of appellee against the appellant for $446.95 and costs.

From this judgment, and the judgment sustaining the attachment, this appeal is prosecuted.

James J. McFeely, for appellant.

Carnahan & Van Hoorebeke, for appellee.

GODDARD, J. (after stating the facts as above).

1. Counsel for appellant contends that the court erred in denying his motion to strike the affidavit and bond in attachment from the files, for the reason that, after the affidavit was sworn to and before the hearing on the motion, it had been altered. The alteration consisted in this: The affidavit, as originally drawn, contained the statement that the appellant was indebted to the appellee in a sum of money 'not exceeding 200 dollars,' and that it now reads, '20 hundred'; in other words, that one of the ciphers had been erased. This contention is without merit for several reasons: (1) There was no competent proof to show that the alteration occurred after the affidavit was sworn to. (2) The alteration was of an unnecessary, immaterial statement in the affidavit, to wit, that of a jurisdictional fact. The complaint averred that the amount claimed did not exceed $2,000. This was sufficient. The statement need not be repeated in the affidavit. Furthermore, the affidavit, even on its face, shows that the claim was for $414.18, which would satisfy the statute if it was necessary for the affidavit to contain such an allegation. Barndollar v. Patton, 5 Colo. 46; Hughes v. Brewer, 7 Colo. 583, 4 P. 1115.

The further claim that the evidence introduced upon the hearing of the traverse was insufficient to sustain the ground of attachment, to wit, that the action was for the purchase price of goods that were to be paid upon delivery, is clearly untenable....