Mackey v. Fullerton

• Decision Date: 14 November 1884
• Citation: 4 P. 1198,7 Colo. 556
• Parties: MACKEY v. FULLERTON and another, Assignees, etc.
• Court: Colorado Supreme Court

4 P. 1198

7 Colo. 556

MACKEY v. FULLERTON and another, Assignees, etc.

Supreme Court of Colorado

November 14, 1884

Appeal from the district court of Gilpin county.

J. E. Rockwell, for appellant.

W C. Fullerton, for appellees.

BECK C.J.

This was an action commenced by the appellees against appellant in the county court of Gilpin county for the recovery of a balance of $510.06, alleged to be due the late firm of Sherrick & Lewis upon an account for goods, wares, and merchandise. There have been two trials of the cause, in each of which the plaintiffs recovered judgment for the full amount of their bill; first, before the county court, and again before the district court of Gilpin county, the latter trial being before a jury.

Sherrick & Lewis were partners doing business as merchants in Nevadaville, in said Gilpin county, their stock in trade being groceries and miners' supplies. The defendant appears to have been a regular customer of said Sherrick &amp Lewis for a considerable time prior to their assignment to the appellees for the benefit of their creditors, which latter event occurred about the first day of September, 1881. The complaint alleges:

'That defendant became indebted to said Sherrick & Lewis in the sum of five hundred and ten and 6-100 dollars, for the balance of an account for goods, wares, and merchandise sold and delivered to the defendant by said Sherrick & Lewis between the eleventh day of December, A. D. 1879, and the twenty-fifth day of August, A. D. 1881, at Nevadaville, in said county.'

The defendant, answering, admitted that he was indebted in the sum of $410.06, and denied his indebtedness as to the balance of the account. After the appeal to the district court he filed a further answer, by leave of the court, averring that the sum of $100, in the account sued on, was for the pretended sale of a barn, situate upon ground belonging to the Monier Metallurgical Works, in Nevada, and that said Sherrick & Lewis had no title to the property sold. Prior to the commencement of the trial in the district court, the plaintiffs disclaimed, in open court, through their counsel, that any part of the account sued on was for the sale of a barn, and declared that the entire account was for a balance due for groceries, hay, grain, and miners' supplies. A record was made of these admissions, and, upon closing their evidence in chief, plaintiffs asked leave of the court to withdraw said admissions, which the court granted, against the objections of the defendant, which ruling was excepted to, and is assigned for error. It is probable that the admissions were withdrawn for the reason that, in the production of the books containing the defendant's entire accounts, a charge for the barn was found to be one of the items.

Upon examination of the testimony we discover no necessity for the withdrawal of the admissions. The defendant appears to have been a regular customer of Sherrick & Lewis at their store in Nevadaville, and, as was their custom, they presented their bills to him monthly for groceries and miners' supplies. He paid to them sums of money upon account, when convenient, which were credited, and the next bill would contain only the new items since purchased, together with the balance due upon the former bill. The testimony showed that defendant's accounts ran through 3, books, but that the books were balanced monthly, and that while bills were presented to customers every month, the items for one month were not repeated in the bill for the next month. The books show a charge of $100 against the defendant for a barn sold him in the month of November, 1880.

It would seem, however, under the general rule of law concerning the application of payments upon a running account, that the barn had been paid for, and, as a matter of fact, did not comprise a part of the account sued on. The rule of...