John Stuart & Co. v. Asher

• Citation: 15 Colo.App. 403,62 P. 1051
• Parties: JOHN STUART & CO., Limited, v. ASHER et al. [1]
• Decision Date: 08 October 1900
• Court: Court of Appeals of Colorado

62 P. 1051

15 Colo.App. 403

JOHN STUART & CO., Limited, v. ASHER et al. ^[1]

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Saguache county.

Action by John Stuart & Co., Limited, against William M. Asher and Frank L. Bishop. Judgment for defendants, and plaintiff appeals. Reversed.

Chas. E. Gast and Henry A. Dubbs, for appellant.

Ira J Bloomfield, for appellees.

THOMSON J.

On the 31st day of December, 1889, William M. Asher and Joann Asher his wife, made their note to the Globe Investment Company for $800, to secure the payment of which they joined in a conveyance of certain real estate, the property of Joann Asher, to Walter C. Frost, as trustee, and empowered him, in case of default by the makers, to sell the land and apply the proceeds in payment of the note. The note, by its terms, was payable on the 1st day of January, 1895; and attached to it were ten coupon interest notes, for $24 each, the first payable six months from its date, and one every six months thereafter, until the maturity of the note. On the 28th day of February, 1892, Joann Asher died, and such proceedings were subsequently had that the title to the property, subject to the trust deed, became vested in William M. Asher. On the 27th day of February, 1898, Asher sold and conveyed the property to Frank L. Bishop, but was not to receive the purchase money until he should cause the trust deed to be satisfied and canceled upon the record. A short time after its execution, the note, with the attached coupons, was sold and indorsed by the Globe Investment Company to John Stuart &amp Co., Limited, a corporation having its domicile in England. The Globe Company also guarantied in writing on the back of the note its payment of the coupons at their maturity. On the 1st day of December, 1894, Asher applied to the Globe Company for a renewal of the loan, and was informed by it that it would endeavor to effect the renewal in a short time, but afterwards, on the 1st day of February, 1895, it notified him that the renewal could not be made; and on the 6th day of March, 1895, he paid the amount due to the Globe Company, which shortly after the payment became insolvent. On the 17th day of September, 1896, Walter C. Frost having refused to act as trustee, W.A. McEntyre, who was, in pursuance of the terms of the trust deed, appointed his successor by John Stuart & Co., Limited, the legal holder of the note, commenced proceedings for a foreclosure of the trust deed by advertisement of the land for sale as provided in the deed. Until after payment of the note had been made to the Globe Company, Asher had no knowledge that John Stuart & Co. had possession of the paper or claimed any interest in it. Upon the foregoing facts, alleging also that in receiving from Asher the money due upon the note the Globe Company acted as the agent of John Stuart & Co., Asher and Bishop brought this suit against John Stuart & Co. and W.A. McEntyre to obtain a decree canceling the trust deed. A temporary injunction restraining the sale was allowed, and upon the final hearing the injunction was made perpetual, and the trust deed adjudged satisfied and ordered to be canceled. John Stuart & Co. appealed.

This record presents but one question, and that is whether in receiving the money from Asher the Globe Investment Company was the agent of John Stuart & Co. The plaintiff's counsel, upon the hypothesis that there was a conflict in the evidence, assumes that we are bound by the findings of fact of the trial court. It is true that where the witnesses testify in open court, and their statements are contradictory, the conclusions upon the facts reached by the jury, if there was one, or by the court, if there was not, are generally accepted as final. The reason of the rule is that the jury or the judge has an opportunity, which the appellate court has not, of seeing and hearing the witnesses and observing their appearance and manner. There are many things affecting the credibility of a witness which cannot be shown on paper, but with which the tribunal in whose presence he testifies is in direct contact, and from which a reasonably correct opinion may be formed as to the accuracy or truthfulness of his statements; and if the judgment of the tribunal which did see the witness, as to the value of his testimony, might be overridden by that of a tribunal which did not, there would be little safety in litigation. But, where the testimony is in writing and is read to the court, there is no such rule, and there is no reason for such rule. The opinion of one tribunal upon the paper is as good as that of another. In this case the evidence upon the question of agency was all in the form of depositions. Upon that question no witness testified in the presence of the court. Therefore, in the matter of determining from the evidence what the facts were, the trial court had no advantage that we do not have, and it is entirely competent to us to decide for ourselves upon which side the preponderance was.

Several questions are raised affecting interrogatories propounded to witnesses by the plaintiffs, and answers made by witnesses to other interrogatories, which we do not find it necessary to decide. Giving the plaintiff the full benefit of the depositions as they were written, we think he fails to show himself entitled to relief. The witnesses were Allison G Mason, president, Lowell Moore, treasurer, and Walter H. Nash, corresponding clerk, of the ...