Prowers v. Nowles

• Decision Date: 02 March 1908
• Citation: 42 Colo. 442,94 P. 347
• Parties: PROWERS v. NOWLES et al.
• Court: Colorado Supreme Court

94 P. 347

42 Colo. 442

PROWERS v. NOWLES et al.

Supreme Court of Colorado

March 2, 1908

Appeal from District Court, Bent County; Jesse G. Northcutt, Judge.

Action by David B. Nowles and others against John W. Prowers. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

On the 14th of December, 1901, appellant, who was defendant below and appellees, who were plaintiffs below, entered into the following contract: 'This agreement entered into this day between John Prowers of Cadoa, Bent county, Colorado, party of the first part, and D. B. Nowles representing the Lamar Seed Company, of Lamar, Colorado party of the second part, witness as follows, to wit: That the said first party has sold to the said second party five ricks of upland prairie hay containing about 90 ton, at $9 per ton, to be baled, weighed, and delivered on board cars at Cadoa station any time between this date and June 1, 1902, at the option of the said second party, provided, however, that said orders by said second party shall be in not less than full car load lots. The said hay shall be sound, sweet, and of good color, and equal in all respects to the samples of said hay submitted by the said first party, and upon the basis of which this purchase was made, said samples being tagged, marked, and preserved as true specimens of said hay. In baling said hay care shall be taken that nothing but bright, clean, merchantable hay shall be baled; the said first party using in said baling three wires in each bail. It is agreed that each car when loaded shall be settled for in full by the said second party at the prices above stated. It is further agreed that the said second party shall advance on this contract $200 receipt of which is hereby acknowledged. In witness whereof we have hereunto subscribed our names.' The hay referred to in said contract was left with appellant. On the 20th of March, 1902, some 30 tons of the same were, without fault of appellant, destroyed by fire. Subsequently and before the remainder of the hay was baled and delivered at Cadoa Station, but after request had been made by appellees therefor, it was also destroyed, by flood and high water from the Arkansas river. In the latter part of December, 1902, this action was begun by appellees to recover from appellant the sum of $200 advanced upon said contract at the date of its execution, together with interest thereon. Appellant's amended answer, after admitting the execution of the contract, first set forth allegations constituting conclusions of law to the effect that title passed to appellees on the date of the contract. The second paragraph of said answer reads inter alia as follows: 'But he states the facts to be that the said hay was delivered to the said plaintiffs in the stack at the place where the same stood in Bent county in this state on the day aforesaid, to wit, December 14, 1901, at the time the same was sold to the plaintiffs as aforesaid.' The third paragraph of the answer admits a request on May 22d by appellees for the baling of the hay and placing the same on the cars at Cadoa Station. It then recites the foregoing facts touching the destruction of the hay, and finally asserts a demand for $610, the same being the balance, after deducting the $200 advanced, of the purchase price agreed to be paid by appellees for the hay. By replication the counterclaim in this answer was put in issue. On motion all of the first paragraph of the answer save the admission as to the making of the contract was stricken out. And thereupon a motion by appellees for judgment on the pleadings was sustained; such judgment being entered for $200, with interest at the rate of 8 per cent. per annum from the date of the contract; also for $15, with interest under the second cause of action. To reverse this judgment the present appeal was taken.

O. G. Hess and H. L. Lubers, for appellant.

Granby Hillyer, for appellees.

HELM, J. (after stating the facts as above).

The trial court did not err in sustaining the motion to strike out part of the first paragraph of the amended answer filed in this case. The averments stricken out were obviously mere conclusions of law, and had no proper place in the pleading.

No issue was made by this answer touching the purchase of wire by appellees for appellant, the same, together with the value thereof, being admitted; nor did the answer deny a request by appellees, within the time specified in the contract, to bale the hay and turn over the same at Cadoa Station. Hence there were no issues touching these matters, and no error was committed in the rulings upon them.

The vital question in the case relates to ownership of the hay under the contract. If this contract was merely executory and the title, therefore, remained in appellant, the vendor he must suffer the loss occasioned by the fire and flood; and in that event appellees should recover the sum advanced at the time the contract was made. But if, on the other hand, the contract constituted a completed sale, and the title immediately passed to appellees, the vendees, then they must suffer this loss, and appellant's counterclaim or demand for the balance of the purchase money should be sustained. Upon few subjects have...