Nitro Powder Co. v. Kearns

• Decision Date: 06 March 1911
• Citation: 114 P. 396,50 Colo. 1
• Parties: NITRO POWDER CO. v. KEARNS.
• Court: Colorado Supreme Court

114 P. 396

50 Colo. 1

NITRO POWDER CO. v. KEARNS.

Supreme Court of Colorado

March 6, 1911

Error to District Court, City and County of Denver; George W Allen, Judge.

Action by the Nitro Powder Company against George F. Kearns. From a judgment for defendant, plaintiff brings error. Reversed and remanded.

Waldron & Thompson and C.J. Blakeney, for plaintiff in error.

Milton Smith and Charles R. Brock (W. W. Platt, of counsel), for defendant in error.

HILL J.

The complaint of the plaintiff (who is plaintiff in error here) in substance, alleged that it sold and delivered goods wares, and merchandise to the defendant between September 26 and November 4, 1904, of the reasonable value of $900, for which said defendant promised and agreed to pay said sum, and that said defendant had not paid said sum or any part thereof. The answer contained: First, a general denial. Second, by way of a separate defense it alleged that some time in the year 1904 defendant purchased from one Maclean certain powder of the value of $900, for which he agreed to pay said Maclean; that subsequently, but for what cause the defendant could not allege, the plaintiff sent him a bill for $765, which was for the same powder sold by Maclean to him and for the same powder sued for in this action; that the $765 was the price for which Maclean purchased said powder from the plaintiff; that the difference between $900 and $765 was the profit which Maclean made upon the powder, which he had so purchased from the plaintiff and which he sold individually to the defendant; that after the death of Maclean the plaintiff made claim to all funds in said estate as trust funds under a contract alleged to exist between Maclean and the plaintiff; that the defendant made claim against the estate of Maclean and against said funds as trust funds for a sum of money claimed to be due for fuse handled and sold by Maclean under contract between Maclean and defendant; that the moneys received from the sale of said fuse were mingled with the funds of said estate; that in the month of April, 1905, an effort was made between the plaintiff, the personal representatives of the estate of Maclean, and the defendant to settle and adjust all matters between them, and at said time the question arose as to whether the $900, which defendant had agreed to pay Maclean for the powder, should be treated as the claim of the said estate of Maclean against the defendant or as a claim of the plaintiff against the defendant; that it was then agreed between the plaintiff, the personal representatives of the estate of Maclean, and the defendant that the $900, which defendant had agreed to pay Maclean for the power purchased as aforesaid, should be treated and considered as a claim of the said estate against this defendant, and was so treated and taken into consideration in the adjustment and settlement of the claim of this defendant against said estate, and at the same time, and in connection therewith, and in consideration thereof, the claim of the plaintiff against said estate was also adjusted and settled and all matters between the plaintiff, the personal representatives of said estate, and this defendant were then and there adjusted, and said claim of $900 was so adjusted and treated by all of the said parties by the express agreement, knowledge, and acquiescence of the plaintiff, and by the settlement thus made the plaintiff received from said estate an amount of money which all of the parties agreed should be paid to the plaintiff, and by said settlement as aforesaid the defendant likewise received from said estate an amount which all of the parties agreed should be paid to him, and thereby the claim of the estate of Maclean against this defendant for the $900 was fully paid, liquidated, and satisfied. The plaintiff, by replication, denied each and every allegation contained in the answer. There was a jury trial. At the close of the plaintiff's testimony, upon motion of the defendant, a nonsuit was granted, and the plaintiff brings the action here for review upon error.

The first error urged is in granting the motion of nonsuit; the second is in the rejection of competent testimony. We will consider the second first.

The deposition of Mr. Metzger, the vice president and general manager of the plaintiff company, shows that at the time these goods were sold the plaintiff was doing business in this state through its agent, one A. A. Maclean, with offices in the city of Denver. The evidence of this witness sets forth in full the contract entered into between the plaintiff company and its agent, showing the conditions under which the agent had a right to sell its manufacturing products at not less than certain prices. His compensation was stated in the contract. All moneys collected were to be deposited in a bank in Denver, to the credit of and to belong to the plaintiff company. The evidence further shows: That, about October 8, 1905, one of the counsel for the plaintiff called upon the defendant at his office in the city of Denver and presented fof payment plaintiff's statement of account made out in its favor. That the defendant, among other things, stated to him: 'That is all right. I got that stuff; but my books show that, after crediting that on my books, my books show they still (the plaintiff company) owe me about $200.' That a little later in the conversation defendant repeated: 'That the account was all right, and that he had gotten the powder, but that it was paid for--having been--it was credited on his books, and that his books, after crediting it, showed that there was still $200 which was due from the Nitro Powder Company to him.'

The defendant was called as a witness by the plaintiff, under the statute, and was permitted to testify that he had received from plaintiff a letter dated April 25, 1905, which had been made Exhibit A. He was then asked if he had replied thereto. An objection to this question was sustained. The plaintiff offered in evidence this letter written by it to the defendant, which was, upon notice, produced in court by the defendant. This letter purports to have been written at Kingston, N.Y., the home office of the plaintiff, and reads: 'We will draw on you the 5th of May for $765.00 due us for powder sold you by Mr. A. A. Maclean, and for which amount we sent you several statements. Should you prefer to remit, kindly advise and oblige.' The court refused to admit this letter in evidence. Plaintiff also offered defendant's letter replying to the above, which reads: 'Acknowledging yours of the 25th ult., my books show a balance due me from the Nitro Powder Company, hence it will be unnecessary to make any draft on me, for same will be refused.' This letter was likewise rejected. In all of this we think the trial court erred. The plaintiff's letter, when properly identified, was admissible as preliminary evidence in showing what the defendant's letter referred to and purported to answer, and, when considered together, the defendant's letter was competent as a self-disserving admission bearing upon the question of his receipt of the goods, which was a material issue in the case, as stated by this court in the case of Cooper v. Perry, Adm'r, 16 Colo. at page 437, 27 P. at page 947: 'No rule of evidence is better settled than that letters, written by a party to the action, containing self-disserving admissions, are competent evidence against him.'

The defendant also produced in court, upon notice, certain invoices purporting to be those of the plaintiff to the defendant, of the sales in question. These invoices were dated at ...