Krippendorf-Dittman Co. v. Trenoweth

• Decision Date: 08 January 1906
• Citation: 84 P. 805,35 Colo. 481
• Parties: KRIPPENDORF-DITTMAN CO. v. TRENOWETH et al.
• Court: Colorado Supreme Court

84 P. 805

35 Colo. 481

KRIPPENDORF-DITTMAN CO. v. TRENOWETH et al.

Supreme Court of Colorado

January 8, 1906

Error to District Court. Gilpin County; A. H. De France, Judge.

Action by the Krippendorf-Dittman Company against Charles Trenoweth and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

C. M Kendall, for plaintiff in error.

H. M Orahood and Chase Withrow, for defendants in error.

MAXWELL J.

This is the third time the subject-matter of this litigation has been before the appellate courts of this state. A restatement of the facts and issues herein involved is rendered unnecessary by the very full statement of facts in the cases of Brown v. Potter, 13 Colo.App. 512, 58 P. 785 and Krippendorf-Dittman Co. v. Trenoweth, 16 Colo.App. 178, 64 P. 373.

In the last-entitled case the reversal was based upon the fact that the evidence as presented in the record there under consideration did not show that the book accounts involved therein were transferred as part of the same transaction witnessed by the bill of sale, and for the same consideration, or that the transfer of such book accounts was based upon a new and separate consideration. This is manifest from the following extracts from the opinion in Krippendorf-Dittman Co. v. Trenoweth, supra. 'Upon the evidence here, they [the book accounts] were not transferred to him [Potter] together with the other property and the consideration of the purchase of that property was not the consideration of their purchase. Potter's purchase of the merchandise, fixtures, and furniture was evidenced by a written bill of sale executed by Charles Trenoweth. No book accounts passed by that instrument. * * * And it was in consideration of the transfer to him of that particular property and no other, that Potter agreed to cancel the indebtedness of Trenoweth to the bank and pay the claims of other preferred creditors. The assignment of the accounts was therefore of necessity a different transaction supported, if supported at all, by a different consideration. But no separate consideration was claimed for it, and in so far as the record throws any light on the subject, this transfer was made without any consideration whatever.' The concluding paragraph of the opinion in the last cited case is as follows: 'Upon the evidence, as we have it, an accounting should have been ordered to ascertain what sums were collected, and by whom; and what other sums were not, which by the exercise of reasonable diligence, might have been; and unless at the next trial a valid contract of which the bill of sale is a part, shall be shown, from which it shall appear that the accounts and the merchandise, furniture, and fixtures, were sold together for the same consideration, it will be the duty of the court to order the accounting, and when it shall be had, to enter the proper judgment. A contract may rest partly in writing and partly in parol, or in two instruments of writing executed contemporaneously, and relating to the same subject-matter; but to enable the court to say that the accounts were included in the sale, it...