Lee-Clark-Andreesen Hardware Co. v. Yankee

• Decision Date: 10 May 1897
• Citation: 48 P. 1050,9 Colo.App. 443
• Parties: LEE-CLARK-ANDREESEN HARDWARE CO. v. YANKEE.
• Court: Colorado Court of Appeals

48 P. 1050

9 Colo.App. 443

LEE-CLARK-ANDREESEN HARDWARE CO. v. YANKEE.

Court of Appeals of Colorado

May 10, 1897

Appeal from district court, Arapahoe county.

Suit by the Lee-Clark-Andreesen Hardware Company against William H Yankee. Judgment for defendant. Plaintiff appeals. Affirmed.

John Hipp and Oscar Reuter, for appellant.

Charles J. Hughes, Jr., and Tyson S. Dines, for appellee.

WILSON J.

Appellant was the plaintiff in this suit. In May, 1890, W.J. King and E.S. Yankee, a son of appellee, formed a co-partnership for the purpose of carrying on the hardware business in the city of Salt Lake under the firm name of King & Yankee. The capital stock was $10,000, all of which was furnished by appellee by a loan of $5,000 to each of the partners. During the course of the business the firm became indebted, among others, to the plaintiff, and also to the appellee in the additional sum of about $1,500. In November 1891, King retired from the firm. The business was continued for some time under the same firm name, when it was entirely discontinued, leaving a number of debts of the firm unpaid. King claims that he transferred his interest in the business to appellee in consideration of his agreement and promise to assume and pay the indebtedness of the firm. Appellee denies this in toto, and claims that the only interest which he ever had in the firm was as a creditor, and that which he felt in the success of his son. Plaintiff, a creditor of the firm, instituted suit to recover from the appellee the amount of the firm debt to it, relying upon the promise alleged to have been made by defendant to King. On the trial of the case much testimony was introduced, and it was very conflicting and contradictory. The alleged promise by defendant to King was not in writing, and there were no witnesses claimed to be present when it was made. Upon the trial the verdict was in favor of defendant, and judgment was rendered accordingly. There are six assignments of error, all save one being to the action of the court in admitting improper, or refusing to admit proper, testimony.

The first error assigned is that the court permitted the defendant to testify that he loaned King $5,000 with which to go into the business, and that the same was then unpaid. The gist of the action being the alleged verbal promise of defendant to assume the debts of the firm, and that being denied by defendant, the testimony extended over a wide range. This was, it seems to us, necessarily so, from the very nature of the case; and it was not improper to admit proof of any circumstances which would throw any light whatever upon the question, and assist the jury in determining which of the two parties told the truth. Viewed in this light, this was a circumstance which, although not directly connected with nor material to the point at issue, might have some weight, when considered in connection with other circumstances, and was not improper to be shown. The trial seems to have involved an inquiry into defendant's entire connection with the firm, and his loan to start the business was a part of it.

Appellee complains that defendant, while testifying as witness in the cause, was permitted to explain why he had said to one of plaintiff's witnesses, in speaking of the firm, "There will be no more money squandered." The fact of this remark being made was first brought out by plaintiff in examination of one of its witnesses, and it should not complain that the court permitted the witness to explain why he made the remark, and what he meant by it. In any event, we can conceive of no possibility by which the plaintiff was injured or prejudiced by this testimony, especially in view of the answer, in which defendant attempted no explanation of how the money was squandered.

We do not think that the court erred in refusing to permit plaintiff, in its cross-examination of the defendant while on the witness stand, to interrogate him as to why he did not reply to a letter from one J.W. Judd, who testified as a witness on behalf of plaintiff, and who appears to have been an attorney for plaintiff; it being alleged that Judd had stated in this letter that he (defendant) had agreed to assume the debts of the firm. We think that the contention of defendant is correct in regard to this ruling of the court. It was not proper cross-examination, there being no testimony brought out in the examination in chief as to any such letter, or as to anything bearing even remotely upon it. Moreover, this was not material or relevant. The fact that defendant had received such a letter from Mr. Judd, and failed to reply to it, could not have bound defendant in any manner. Judd was not a party to this suit, and not even a creditor of the firm; and hence the reasons of defendant for such failure to reply were even less material.

The fourth error assigned is to the action of the court in striking out the answer to the second direct interrogatory in the deposition of J.W. Judd. This answer detailed a conversation between the witness and E.S. Yankee as to the business of the firm. Defendant was not present at this conversation, and therefore could not have been bound or affected by any statements that were made. The answer was properly stricken out.

The...