Schmidt v. First Nat. Bank of Denver

• Decision Date: 11 October 1897
• Citation: 50 P. 733,10 Colo.App. 261
• Parties: SCHMIDT et al. v. FIRST NAT. BANK OF DENVER.
• Court: Colorado Court of Appeals

50 P. 733

10 Colo.App. 261

SCHMIDT et al. v. FIRST NAT. BANK OF DENVER.

Court of Appeals of Colorado

October 11, 1897

Appeal from district court, Arapahoe county.

Replevin by the First National Bank of Denver against Schmidt &amp Ziegler. Judgment for plaintiff, and defendants appeal. Affirmed.

John T. Bottom, for appellants.

Thomas H. Hood, for appellee.

BISSELL J.

The record now before us does not differ in any essential particular from the one on which the case was heard when it was before us on a former appeal. There is no new question to be examined, nor can it be expected that we shall review or reconsider the legal propositions then determined. The opinion which may be found in 6 Colo.App. 216, 40 P. 479 remains the law of the case. According to the decision of our supreme court when the law has been once declared, the opinion must control on any subsequent hearing, and be practically treated as res adjudicata. Lee v. Stahl, 13 Colo 174, 22 P. 436; Routt v. Land Co., 18 Colo. 132, 31 P. 858; Israel v. Arthur, 18 Colo. 158, 32 P. 68. It is therefore true that, as between a bona fide transferee for value of a bill of lading and a creditor who seeks to stop the goods in transit, the equity of the transferee must prevail. This was the pivotal point decided, and which then and now controls our conclusions. There were some incidental questions as to whether an antecedent debt was a good consideration, or whether a defendant might raise the question as to the authority of a national bank to make the contract. Like the first, both these questions were resolved against Schmidt & Ziegler, and by this they must remain concluded. We shall therefore pay no attention to the discussion of these propositions, nor to the argument by which counsel seeks to attack the prior decision. The briefest possible reference to the situation is enough for the purposes of this opinion.

Boehm & Co. were wholesale liquor dealers, and bought goods of Schmidt & Ziegler, who were merchants in New Orleans. The goods were billed and shipped; the bill of lading transmitted to Boehm & Co., who delivered it to the First National Bank of Denver, under an agreement by which they had received money from the bank on the faith and strength of the promised future delivery of the bill on arrival. It came, and was turned over according to the contract, and the bank brought replevin for the goods, and in the present suit has obtained judgment, which must be affirmed unless there be some error which affects it. While there was no occasion for it, and we might have contended ourselves with the simple statement that the jury found against the appellants, and therefore all facts and inferences which might be legitimately drawn from the proof might be taken as established, we have read the testimony with a good deal of care, and are not at all inclined to disagree with the jury. We are totally unable to find any reason for disturbing their verdict, for the cause was submitted to them under clear, perspicacious, and accurate statements of the law as we had previously declared it. Starting with this basis, then, it must be assumed that the bank was a transferee for value, and entitled to maintain the suit, unless there be some legal objections other than what arise from the circumstances of the transaction. Many errors are alleged, some of which may be disposed of with a simple reference, and others by suggestions of our position respecting them.

We do not quite understand why the appellants allege that the court erred in failing to grant their motion for a nonsuit, because we do not find any such motion either in the abstract or in the record, nor any ruling which can be taken as one made on an application for judgment after the plaintiff had rested. Had this motion been made, it would have been very properly denied, because the plaintiff certainly made out a case which it required proof to overcome; and, when that was offered, it left an inquiry purely for the jury.

It is urged with some apparent conviction that there was a variance between the pleadings and the proof, because the bank alleged it was the owner of the property, whereas the proof was that the bill of lading was delivered as security for money loaned. In the first place, the variance would not be fatal because the defendants failed to object on that ground, to allege surprise, seek the postponement of the trial, or to take any other steps which are essential to make this question available on an appeal. Salazar v. Taylor, 18 Colo. 538, 33 P. 369; Iron Co. v. Cummings, 8 Colo.App. 541, 46 P. 875. In any event, an allegation of this sort in an action of replevin brought under these circumstances and on such facts can be maintained on proof of the title which the bank had, which, for the purposes of the action, was undoubtedly that of ownership, whether regarded as absolute or qualified. This doctrine has been recognized in many cases, and seems to be well settled by the authorities. Means v. Bank, 146 U.S. 620, 13 S.Ct. 186; Curtis v. Mohr, 18 Wis. 615; Duggan v. Wright, 157 Mass. 228, 32 N.E. 159.

Appellants' counsel insists that they were greatly prejudiced by the conduct of counsel during the trial, and in the argument to the jury it is insisted that counsel unjustly advised them of the antecedent reversal of the cause, and undertook to read some law from the opinion of the court. We do not know whether this is or is not true. We may concede it for the purposes of discussion; yet the appellants would gain nothing by the concession. In order to make this objection available it is the duty of counsel at the time to object to the proceedings, and ask that the jury be instructed to disregard what may have been urged...