International Harvester Co. of America v. Lawrence Inv. Co., 13591.

• Decision Date: 29 October 1934
• Docket Number: 13591.
• Citation: 37 P.2d 529,95 Colo. 523
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. LAWRENCE INV. CO.
• Court: Colorado Supreme Court

37 P.2d 529

95 Colo. 523

INTERNATIONAL HARVESTER CO. OF AMERICA v. LAWRENCE INV. CO.

No. 13591.

Supreme Court of Colorado

October 29, 1934

Rehearing Denied Nov. 19, 1934.

In Department.

Error to District Court, Crowley County; John H. Voorhees, Judge.

Action by the Lawrence Investment Company against the International Harvester Company of America. Judgment for plaintiff, and defendant brings error.

Affirmed.

Harry E. Mast, of Ordway, and Frank L. Grant, of Denver, for plaintiff in error.

Charles C. Wooldridge, of Ordway, for defendant in error.

BOUCK Justice.

This case involves questions arising--by reason of foreclosure sales under two chattel mortgages between two corporations which have respectively succeeded to the mortgagor and mortgagee in each of those documents. For simplicity's sake we shall speak of the corporations as if they were the original mortgagor and mortgagee. Judgment for $302.50 was rendered in the district court of Crowley county against the mortgagee, the International Harvester Company of America defendant below (plaintiff in error here), and in favor of the mortgagor, the Lawrence Investment Company, plaintiff below (defendant in error here). The judgment is Before us for review.

The plaintiff sued on three similar causes of action. A jury trial was had. Verdicts were rendered against the defendant on the first two causes of action; but the trial judge directed a verdict in favor of the defendant on the third and also reduced the verdict on the first one by $200. Judgment was rendered accordingly.

The defendant Harvester Company contends that the action is trover and conversion; the plaintiff insists that it is a suit for an accounting.

The allegations in the complaint are that the plaintiff was the owner and in possession of certain agricultural implements and other property, subject to chattel mortgages owned by the defendant; that the defendant, as mortgagee, took possession of the property, sold it at private sale, and itself became the purchaser at less than the value; and that the damage to the plaintiff is the difference between the mortgage indebtedness and the reasonable value of the property. It is readily seen from the aforesaid allegations that the plaintiff has not thereby attempted to plead the ordinary cause of action in trover and conversion. The plaintiff's assertion that the action is a suit for an accounting seems to be corroborated by the defendant's tender of an instruction which reads as follows: 'The Court instructs the jury that this is an action for an accounting to the plaintiff from the defendant of the proceeds realized from the sale of the mortgaged property which the defendant sold on June 20, 1931, and if you believe from the evidence that no surplus remained [etc.], then your verdict must be in favor of the defendant, and against the plaintiff, on both causes of action.' After taking such a stand, the defendant is not at liberty to argue that the suit is not for an accounting.

Under the doctrine of Hurt v. Hubbard, 41 Colo. 505, 92 P 908, there is no doubt that an action of trover and conversion does not lie in Colorado at the...