Rosenbaum v. McEwen

• Decision Date: 14 April 1913
• Citation: 24 Colo.App. 58,131 P. 780
• Parties: ROSENBAUM et al. v. McEWEN.
• Court: Colorado Court of Appeals

131 P. 780

24 Colo.App. 58

ROSENBAUM et al. v. McEWEN.

Court of Appeals of Colorado

April 14, 1913

Appeal from District Court, Larimer County; Harry P. Gamble, Judge.

Action by James McEwen against H. Rosenbaum and another. Judgment for plaintiff, and defendants appeal. Affirmed.

T.J. Leftwich, of Ft. Collins, for appellants.

Rhodes & Temple, of Ft. Collins, for appellee.

BELL J.

The complaint avers, among many other things, that on August 10 1906, the plaintiff and defendants associated themselves for the purpose of buying, selling, feeding, and disposing of cattle, each of the parties sharing equally in the expenses and profits; that, in pursuance of this agreement, $29,056.02 worth of cattle were purchased; that the plaintiff contributed from his own funds for said purchase $2,125.07 and that the balance of said purchase price was paid from the proceeds of certain joint notes executed by each and all of the parties to this action; that the expense of feeding handling, and disposing of said cattle was $11,920.83, all of which was paid in cash by the plaintiff, and that both of the above specified sums were paid from his own private resources; that said cattle were sold for $48,683.28, resulting in a net profit of $7,706.43, and that all the returns that plaintiff has received from said firm or the defendants is $5,315.80; that there is owing to the plaintiff from the defendants the sum of $11,298.91, which they have refused and neglected to pay, though often requested so to do. The plaintiff demands judgment for $11,298.91 or such other sum as the court may find on final accounting to be due from the defendants, and prays that the defendants be required to answer, under oath, setting forth any other, further, or different accounts which they may have relating to the said business, for interest, cost, and general relief. The defendants demurred to the complaint because, they allege it did not state facts sufficient to constitute a cause of action, and because ambiguous, unintelligible, and uncertain, stating divers alleged ambiguities, etc.

The court overruled the demurrer, and the defendants filed a joint answer and cross-complaint denying most of the allegations in the complaint, and alleged that on August 1, 1907, all the parties hereto met and settled all of their unfinished partnership business, except 26 head of unsold cattle, and then and there stated all of their accounts up to August 1, 1907, excluding said 26 head of unsold cattle, and then and there found that the defendants owed the plaintiff the sum of $1,175.50, which they then and there paid in full settlement, relinquishment, accord, satisfaction, and discharge of any and all claims owned, held, or asserted by the plaintiff against defendants or against said association, and that the plaintiff then and there executed and delivered to defendants his said relinquishment or release in writing therefor. And that thereafter, on or about the 1st day of September, 1907, the plaintiff and defendants entered into a subsequent settlement of the affairs of said association, including said 26 head of unsold cattle, fixtures and appliances upon their feeding lots, and then and there mutually stated, between themselves, an account of all matters accruing subsequent to the date of the earlier settlement, and as a result of said mutual statements of accounts of said association and of the mutual accounts of the members thereof, and after deducting all credits due to the said plaintiff, it was then and there ascertained and agreed that there was due from the plaintiff to defendants the sum of $236, which the plaintiff then and there agreed to pay, but failed so to do, and the defendants pray judgment against the plaintiff in the cross-complaint for the sum of $236.

The plaintiff filed a replication denying all accounts stated, final settlements in part or whole, all acquittances, whether in writing or verbal, and other new matter in the answer and cross-complaint, and alleges that if defendants have any such release or discharge in writing purporting to be a settlement, the same has been obtained fraudulently, is without consideration, and is not the act of the plaintiff. The parties by consent joined the court in the appointment of Winton M. Ault, Esq., an attorney of the Larimer county bar, as referee to take the testimony, make findings of fact and conclusions of law, and recommend to the court a proper judgment.

The referee took the evidence in full on all material issues raised by the pleadings and reported specific findings of fact and conclusions of law and recommended a judgment in favor of the plaintiff and against the defendants for the sum of $1,642.16. The court approved the findings and rendered judgment thereon for the amount recommended by the referee, from which findings and judgment the defendants appealed.

The appellants have materially limited the scope of our consideration in reviewing this record by abandoning many of their former positions. At folios 68, 69 the abstract reads as follows: "Demurrer filed in district court, Larimer county, April 7th, 1908. (Note.--As demurrer is not urged, it is not set forth in the abstract.)"

As we understand, the appellants' failure to present an abstract of the record of the proceedings on the demurrer and their express waiver set forth in the abstract deprive the appellants of the right to a hearing on the demurrer in this court for ambiguity, uncertainty, etc. Roberts et al. v. Handasyde, 21 Colo.App. 450, 122 P. 60.

Appellants' counsel, at page 7 of brief, asserts "the principal points discussed in this brief are that the...