Temple v. Teller Lumber Co.

• Decision Date: 04 October 1909
• Citation: 106 P. 8,46 Colo. 497
• Parties: TEMPLE et al. v. TELLER LUMBER CO.
• Court: Colorado Supreme Court

106 P. 8

46 Colo. 497

TEMPLE et al. v. TELLER LUMBER CO.

Supreme Court of Colorado

October 4, 1909

Rehearing Denied Dec. 6, 1909.

Appeal from District Court, Teller County; Robert E. Lewis, Judge.

Action by the Teller Lumber Company against W. O. Temple and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. O. Temple and Charles C. Butler, for appellants.

CAMPBELL J.

This is an action by the Teller Lumber Company against two domestic corporations, designated in the record as the 'Reduction Company' and the 'Homestake Company,' for a balance due upon an open account for lumber and other merchandise sold and delivered to them by the plaintiff. The individual directors of the Reduction Company are joined as defendants, and judgment is also asked against them upon the ground that, as such officers, they failed to file the annual report of their company as the statute provides. The trial was to the court without a jury and the judgment rendered dismissed the Homestake Company from the action, and went in plaintiff's favor against the Reduction Company and its directors, from which judgment against them they have appealed.

It is doubtful if such objections were made or exceptions taken at the trial by defendants, who are appellants here, as will enable them, under our rules of practice, to be heard upon their assignments of error, which, also, are of questionable validity. There is no appearance here for the appellee; but our examination of the record leads us to the conclusion that the judgment must be affirmed, upon the assignments argued by appellants' counsel, assuming that they are in a position to be heard upon them.

1. It is first contended that the original debt to the plaintiff for the merchandise sold by it to the Reduction Company has been discharged as a result of a novation and substitution. The Reduction Company sold and transferred its corporate property to the Homestake Company, and as part of the purchase price the vendee, it is said, agreed to pay this debt. For the purposes of this branch of the case, it may be taken as true that such payment was assumed. We observe first, that the answer of the Reduction Company is merely a general denial, and it would seem that a novation and substitution, being in the nature of a release or discharge is new matter and should be specially pleaded. 18 Enc. Pl. & Pr. 89; Bliss on Code Pleading (3d Ed.) § 340. If however this defense had been pleaded, the evidence altogether fails to establish it. There can be no novation and substitution in law unless the original debtor, the original creditor, and the new debtor have all entered into such an agreement. 29 Cyc. 1129; 21 Am. & Eng. Enc. of Law (2d Ed.) 659. There is no evidence here either that the Reduction Company, the original debtor, or the plaintiff, the creditor, agreed to the alleged novation and substitution.

2. Complaint is made that Mr. Walsh, a witness called by the Homestake Company, was permitted by the court to give hearsay testimony. That may be true; but no such objection was made below. It is also said that his testimony is insufficient to establish the defense of the Homestake Company that it had, under its agreement with the Reduction Company, paid to the latter all, and more than, it was bound to pay, and therefore was not liable to plaintiff. Doubtless the witness Walsh did not have personal knowledge of the various transactions which, it is claimed, operated as a full payment. He did not purport to have such knowledge, but, without objection, testified to the contents of the books of the Homestake Company, which are sufficient to establish the point in controversy. Serious complaint is made of a remark by the presiding judge with respect to this payment, that the court would take Walsh's testimony on that proposition, since it is asserted to be in conflict with the testimony of Mr. Temple, whose deposition was taken by plaintiff, and which was also offered in evidence by the Reduction Company. We do not perceive the force of the objection. It may be that the court thought that the testimony of Walsh, which consisted largely of a reproduction of what the company books contained, was entitled to more consideration than the recollection of Mr. Temple as to their contents, who admitted that he had not had recent access to them, and who might have been, and doubtless was, honestly mistaken. Our examination, however, of the record fails to disclose any such conflict between the testimony of these two witnesses on this issue as is claimed by appellants in their argument.

3. It is...