Scott Supply & Tool Co. v. Roberts

• Court: Colorado Supreme Court
• Writing for the Court: GODDARD, J.
• Citation: Scott Supply & Tool Co. v. Roberts, 93 P. 1123, 42 Colo. 280 (Colo. 1908)
• Decision Date: 03 February 1908
• Parties: SCOTT SUPPLY & TOOL CO. v. ROBERTS.

93 P. 1123

42 Colo. 280

SCOTT SUPPLY & TOOL CO. v. ROBERTS.

Supreme Court of Colorado

February 3, 1908

Error to Weld County Court; Charles E. Southard, Judge.

Action by the Scott Supply & Tool Company against John P. Roberts. Judgment for defendant. Plaintiff brings error. Affirmed.

H. E Churchill (Joseph C. Ewing, of counsel), for plaintiff in error.

Elbert C. Smith, for defendant in error.

GODDARD J.

The facts upon which this controversy arises are, in brief, as follows: On August 11, 1902, the plaintiff in error sold to defendant in error a certain gasoline engine and appurtenances at and for the agreed price of $575, to be operated in pumping water from a well on defendant's land to irrigate about 60 acres planted in potatoes. Defendant admits the purchase of the engine and appliances upon the terms and conditions set forth in the following written order:

'The Scott Supply & Tool Co., Denver, Colo.:

'Ship to John P. Roberts.

'How ship: F. by U. P. R. R.

'When At once.

'Terms Cash, as soon as plant is running in good order.

'One 14-H. P. Charter engine with all the connections including battery and 50 feet of 6-ply O-8 inch rubber belt. Will furnish a man to set it up. Party to pay expenses from Denver. No charge for time of man.

'Price, f. o. b. Denver, $575.

'[Signed] John P. Roberts.'

And he claims that the plant referred to in the order was to be put in good running order by the 13th day of August, 1902; that the plant was not put in good running order on the 13th, or at any time; and that on the 20th day of August, 1902, he rescinded said order, and gave plaintiff notice that he would not accept the engine. Plaintiff, on the other hand, insists that it delivered the engine and accessories at the time and fully complied with the terms of the contract. There is a marked conflict in the testimony introduced by the respective parties as to the actual operation of the engine and pump; that of the plaintiff being to the effect that the plant, including the pump, was put in good running order, and successfully operated, that of defendant to the effect that not only the plant, including the pump, was not put in good running order, but that the engine itself was never put in good running order. There was testimony given by disinterested witnesses to support both of defendant's contentions, and upon which the jury, in the exercise of its province to determine the weight of evidence and credibility of witnesses, might have based its verdict for defendant; but, since their finding might have been, and probably was, based upon the theory that the word 'plant,' as used in the written order, included the pump, as well as the engine by which it was to be operated, it becomes necessary to determine what the word 'plant' referred to and was intended to cover in the circumstances surrounding the transaction.

Counsel for plaintiff in error insists that the word 'plant,' as here used, was anambiguous when considered with the actual state of the subject-matter at the time of the execution of the contract of sale, and plainly referred only to the engine itself and attachments, and assigns as error the ruling of the court in admitting testimony offered by the defendant as to the construction that should be placed upon the written contract above mentioned. Whether the court erred in this particular we do not feel called upon to determine, since the plaintiff is not in a position to avail itself of this objection, having on its own behalf introduced testimony of the same tenor and effect. Experts called by defendant were allowed to testify, without objection, to the meaning of the word 'plant' when used in connection...