Silver Mountain Mine Co. v. Anderson

• Decision Date: 07 October 1907
• Citation: 41 Colo. 123,92 P. 226
• Parties: SILVER MOUNTAIN MINE CO. v. ANDERSON.
• Court: Colorado Supreme Court

92 P. 226

41 Colo. 123

SILVER MOUNTAIN MINE CO. v. ANDERSON.

Supreme Court of Colorado

October 7, 1907

Rehearing Denied Nov. 4, 1907.

Appeal from Clear Creek County Court; Henry J. Crist, Judge.

Action by Axel F. Anderson against the Silver Mountain Mine Company. From a judgment for plainiff, defendant appeals. Reversed and remanded.

E. M. Sabin, for appellant.

John J White, for appellee.

GABBERT J.

Appellee brought suit against appellant to recover upon several causes of action, the first of which was for goods, wares, and merchandise alleged to have been sold and delivered to it by him at its request. The other causes of action were for accounts assigned to the plaintiff, some of which were also for merchandise alleged to have been sold and delivered to the defendant, and others for work and labor performed for it, at its request. The defendant filed an answer, denying the allegations of the complaint, and, in a separate defense pleaded that one Foster had a lease and option on the property of the defendant during the time the indebtedness sued upon was incurred; that this fact was known to the plaintiff and his assignors; and that the merchandise was furnished and the work and labor performed for the lessee and not for the defendant. To this defense a replication was filed by plaintiff. The case was supplemented by an attachment, the affidavit of which was traversed. The issues thus made were submitted to a jury, who returned a verdict finding for the plaintiff on both branches of the case. Judgment was rendered accordingly, and the defendant appeals.

Many errors are assigned, but we shall only consider the one challenging the sufficiency of the testimony to sustain the verdict of the jury on the question of indebtedness sued upon. It appears from the record as abstracted, without dispute, that during the period this indebtedness was incurred the property was being operated under lease from the defendant to Foster. According to the abstract, there is no testimony whatever to show that the merchandise sued for was sold to the defendant, or ordered by any one authorized to bind it, or that it was sold and delivered under circumstances which would make the company responsible therefor. It does not appear that those who worked upon the mine, and whose accounts for such work were assigned to plaintiff, were employed by the company, or by any one authorized to employ persons for it, or that ...