Mitchell v. Reed

• Citation: 26 P. 342,16 Colo. 109
• Parties: MITCHELL v. REED et al.
• Decision Date: 20 February 1891
• Court: Supreme Court of Colorado

26 P. 342

16 Colo. 109

MITCHELL v. REED et al.

Supreme Court of Colorado

February 20, 1891

Commissioners' decision. Appeal from superior court of Denver.

Clarence A. Lott, for appellant.

S L. Carpenter, for appellees.

BISSELL C.

This action was originally commenced before a justice to recover the value of two Gurley mountain solar transits from the appellant, Mitchell. It was claimed that they came into his possession at the time he bought the stock of Alger & Co., to whom they had been antecedently delivered for sale by Reed Bros. It has been assigned as ground for reversal that the judgment of the superior court rendered upon the appeal to it is manifestly against the weight of evidence. This contention appears to be will based and properly laid. About certain of the facts essential to the plaintiffs' recovery there is no dispute. The Reed Bros. owned two transits, which were sent to Alger & Co. for the purposes of sale. Subsequently the appellant, Mitchell, became the purchaser of Alger &amp Co.'s stock upon a lumped sale, without any inventory. The principal question in the court below, as well as in this, is, did Mitchell receive the two transits belonging to Reed Bros. at the time of the purchase from Alger & Co., and was he obliged to account to them for the value? Originally as is evident, he was no party to the transaction. He had entered into no contract with Reed Bros., and incurred no liability with reference to the transits, either by virtue of an original stipulation with the bailors, nor by reason of anything that occurred as between him and Alger & Co. at the time of his purchase. Under these circumstances, his obligations to the Reed Bros. were exceedingly slight, and whatever he may have written, done or said with reference to those two transits is to be construed in the light of these existing relations. The only evidence which was produced by Reed Bros. in support of their claim to recover the value was sundry letters which were written by Mitchell to them concerning the instruments within a very few days subsequent to his purchase. Mitchell seems very early to have discovered that his vendors, Alger & Co. had in their possession at the time of the sale to him sundry instruments, left with them for repairs or sale by various persons who claimed to own them. He seems to have attempted by inquiry to ascertain the facts concerning the ownership of all such instruments, and to have attempted their return to the parties who had the title. In pursuance of these plans he wrote the letters which were offered in evidence, which, in terms, conceded his possession of two instruments belongint to the plaintiffs, offered to dispose of them, and account for the proceeds. One of them was so sold by him, and the price remitted. As to the other, he contends that the letters were written under a mistake, and without full knowledge concerning the fact of the ownership of the instruments. His explanation upon this subject is full, and apparently satisfactory. The court below, however, seems to have proceeded upon the theory that, as...