Rogers v. McMillen

• Decision Date: 11 March 1895
• Parties: ROGERS et al. v. McMILLEN.
• Court: Colorado Court of Appeals

39 P. 891

6 Colo.App. 14

ROGERS et al. v. McMILLEN.

Court of Appeals of Colorado

March 11, 1895

Appeal from district court, Lake county.

Action by Neil McMillen, administrator, against John W. Rogers and others, partners under the name of Continental Chief Mine. From a judgment for plaintiff, defendants appeal. Affirmed.

Appellee, the administrator of the estate of William J.A. Howie, brought suit to recover from appellants the sum of $1,224.88, alleged to have been due Howie at the time of his death. Appellants were mining the Continental Chief Mine. Howie was engaged, with teams, in hauling coal to the mine, and ore from it. He died on the 14th day of October, 1892. At the time of his death it is alleged that there was due and owing to him for such services for the month of September and the 14 days of October the amount for which the suit was brought. Previous to September 1st settlements had been had, and all accounts adjusted. The complaint was in the ordinary form. The defendants, in answer, admitted the death of Howie, the appointment of appellee as administrator, and that they the defendants were doing business under the name of Continental Chief Mine denied generally the other allegations of the complaint. A jury was waived, and a trial had to the court. At the commencement of the trial it appears to have been admitted in open court "that if Howie, or his administrator, are entitled to recover against the defendants any amount, that amount will be $1,217." The trial resulted in a judgment for the plaintiff for $1,214.43, from which an appeal was prosecuted to this court.

A.J Sterling, for appellants.

Geo. S Phelps and N. Rollins, for appellee.

REED, J. (after stating the facts).

We cannot understand what, if any, influence or effect the stipulation in open court that the amount of the recovery should be $1,217, if anything, had upon the trial of the case. Such a stipulation would naturally be construed as fixing the amount in case the legal question or questions presented should be determined in favor of the plaintiff leaving only legal questions to be determined upon the trial; but it does not seem to have been so regarded by court or counsel, and we are confronted with many pages of evidence, and elaborate columns of figures, for apparently no purpose except to establish the concession made as to the amount in the first instance. The result reached having only varied from the amount conceded $2.57, it may be regarded as establishing the amount of damage. The small difference having been found for defendants, they cannot complain that the judgment is excessive.

Although the trial was very lengthy, and contested with great zeal and energy, only one question seems to be involved, which may be briefly stated: Whether Michael, one of the defendants' partners, doing business under the firm name of the Continental Chief Mine, could set off a note of Howie, payable to him individually, against the amount due Howie from the partnership. The court properly found it could not be done, and gave a judgment for the amount admitted to be due. Numerous errors are assigned, but, aside from the general one that the finding was against the evidence, they were principally to the refusal of the court to admit evidence to establish the note as a set-off. The contention was that Howie borrowed money from Michael, for which he gave his note; that it was for money borrowed to purchase teams; and that the work done was done for him individually in payment of the note, and he was to collect from the company. This claim was negatived--First, by the books of Howie, where it was charged to the company; second, by the books of the company, where it was put to the credit of Howie; third, by previous transactions, where, during the existence of the note, monthly payments had been made by the company to Howie direct, for large amounts, while only two or three payments, amounting in all to $300, had been paid by Howie to Michael, and indorsed upon the note. The note bore date January 10, 1890; was for $1,500, payable six months after date; indorsed May 12, 1891, with payment of $100; September 28, 1892, $200. Howie died October 14, 1892. It will be observed that the payment of $200 was made September 28, 1892. The bills for the month of September, as taken from the books, were $889.66, due two days after the payment of $200 made by Howie to Michael, and from another source. Howie was then living, and the sum due from the company on October 1st--$889.66--was not indorsed nor passed to the credit of Michael. The bills for the month of October, until Howie's death, on the 14th, amounted to $214.77. On November 11th--nearly a month after Howie's death--Michael indorsed upon the note $1,217.35 due from the company to Howie, being the balance due upon the note. These facts, though not conclusive, were very strong circumstances tending to show that Michael's contention was an afterthought.

The refusal of the court to allow the note from Howie to Michael to go in evidence is urged as error. This may be very briefly disposed of. Unless the alleged agreement contended for by Michael was clearly established beyond controversy, it was inadmissible for any purpose. It was not made to, nor the property of, the mining company. The consideration for the note did not go from the company, but from the...