Slide Mines, Inc. v. Denver Equipment Co.
| Decision Date | 01 May 1944 |
| Docket Number | 15133. |
| Citation | 112 Colo. 285,148 P.2d 1009 |
| Parties | SLIDE MINES, Inc., v. DENVER EQUIPMENT CO. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, City and County of Denver; Floyd F. Miles Judge.
Action by Denver Equipment Company, a corporation, against the Slide Mines, Inc., for the balance due on a note evidencing the unpaid balance of purchase price of certain mining equipment wherein the defendants filed a counterclaim based on fraud and breach of warranty. Judgment for plaintiff, and defendant brings error.
Affirmed.
J. F. Little, of Denver, for plaintiff in error.
J. G Holland, of Denver, for defendant in error.
In this case defendant in error sued plaintiff in error for the balance due on a promissory note given 'to evidence indebtedness consisting of the unpaid balance of the purchase price of certain equipment * * *', and interest. The principal defenses were fraud and breach of warranty, and a counterclaim was based thereon. After issues joined, trial was to the court which found in favor of plaintiff and entered judgment as prayed. Reference will be made to the parties hereinafter as in the court below.
Briefly stated the facts, as they appear in the record, are as follows: Defendant operated a flotations mining mill, and plaintiff was engaged in the business of manufacturing and selling mining equipment. In the latter part of the year 1939, defendant purchased a thickener for mill tailings from plaintiff, which thickener was placed in operation on the property of defendant about February 1, 1940. The machine collapsed on March 12, 1940, due, allegedly, to improperly designed bands or hoops which held the tank together. Following this incident the parties negotiated for a new thickener and settled their differences. It appears that the original thickener, which plaintiff installed, was equipped with curved rakes which were not satisfactory to defendant. There was some discussion concerning this matter between the officials of the two companies; however, Leland Logue, field manager of plaintiff company, stated to officials of defendant that in his opinion the curved rakes were superior to the others which were being considered, and officials of defendant say that Logue told them that the Dorr Company was using the curved rakes and paying plaintiff company royalty therefor. Subsequently the officials of defendant company agreed to the reinstallation of the curved rakes in the new thickener, the equipment being placed in operation about May 20, 1940. It operated successfully thereafter, and on July 1, 1940, defendant, at the request of plaintiff, wrote a letter in which it was stated that the thickener 'is now working satisfactorily, both mechanically and metallurgically,' and had been for approximately six weeks, and in view of deferment of the payment of the notes, defendant agreed to pay the notes in full on August 10, following.
Defendant contends that after July 1st further trouble developed and it had to expend several hundred dollars for digging and cleaning tailing ponds, accumulations in which were caused by the alleged failure of the thickener to operate efficiently and handle its share of the load, and on August 12, 1940, it advised plaintiff company, after making a payment on the note, that 'it would be the last payment until the thickener was fixed up.' Plaintiff made several unavailing demands for final payment, and in the latter part of December, 1940, it instituted the present action.
In March, 1941, defendant's general manager, a Mr. Rodgers, called on the Dorr Company and learned that that company was not using plaintiff's curved rakes or paying a royalty therefor. Relying on the statement allegedly made by Mr. Logue a year earlier that the Dorr Company was using plaintiff's rakes and paying a royalty therefor, the defendant pleaded fraud and breach of implied warranty as defenses to the suit.
The trial Court, without making a specific finding on the issue of fraud, stated that in its opinion whatever rights defendant may have had prior to July 1, 1940, they were foreclosed by the terms of the agreement as of that date, and that at that time 'the matter was accepted as being satisfactory from every viewpoint * * * and any representations that were made would become immaterial.'
Defendant's specification of points reads:
These points may well be considered together. While the trial court did not make specific findings as to fraud...
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