Pickett v. Handy

• Decision Date: 10 December 1894
• Citation: 5 Colo.App. 295,38 P. 606
• Parties: PICKETT et al. v. HANDY et al.
• Court: Colorado Court of Appeals

38 P. 606

5 Colo.App. 295

PICKETT et al. v. HANDY et al.

Court of Appeals of Colorado

December 10, 1894

Appeal from district court, Fremont county.

Action by Nelson F. Handy and Frank H. McGee against Charles H Pickett and W.F. Littell for the recovery of a specific sum of money. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Samuel P. Dale, for appellants.

Waldo &amp Dawson, for appellees.

THOMSON J.

This action was brought against W.F. Littell and Charles H Pickett, as partners, to recover $963.83, for goods sold and delivered to the defendants by the plaintiffs. Littell made default. Pickett answered, denying generally the allegations of the complaint. There was evidence given sufficient to warrant the jury in finding that Pickett, by his conduct and representations, justified the plaintiffs in believing that he was a partner of Littell, and in selling the goods in question to the supposed firm. There was also evidence tending to show that the plaintiffs were not entitled to recover as against Pickett the entire amount charged, and that a portion of the goods were ordered by Littell upon his own individual account. Instructions were asked by both parties upon the questions involved, which were refused; and, in lieu thereof, the court submitted to the jury the following questions of fact: "Question No. 1. Did Charles H. Pickett, during the time the goods in controversy were sold and delivered to William F. Littell either by his own conduct or representations, or by the conduct and representations of others, which he authorized, hold himself out to Handy & McGee as a partner of William F. Littell in the latter's Wellsville business? Question No. 2. Did Handy & McGee sell the goods in question to W.F. Littell, at Wellsville, in the belief that Charles H. Pickett was a copartner with Littell in the business there? Question No. 3. Did Handy & McGee have, as prudent, careful, and cautious business men, any good cause to believe, and did they in fact believe, from the conduct of Charles H. Pickett himself, or from the conduct of others known to and approved by him, that he, Charles H. Pickett, was in fact a partner with W.F. Littell in his Wellsville business? M.S. Bailey, District Judge." To each of the foregoing questions the jury answered, "Yes." Pickett's counsel objected to the receiving of the answers, but his objection was overruled, and judgment rendered by the court for the full amount of the plaintiffs' claim, $963.83, and costs. There was no general verdict, and the judgment was based solely upon the special findings. Pickett appealed, and asks a reversal of the judgment, on the ground that these proceedings of the court were irregular and erroneous.

The following is the sixth paragraph of section 187 of the Code "Before the argument is begun, the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing and...