Waid v. Hobson

• Decision Date: 09 December 1901
• Citation: 17 Colo.App. 54,67 P. 176
• Parties: WAID v. HOBSON. [1]
• Court: Colorado Court of Appeals

67 P. 176

17 Colo.App. 54

WAID v. HOBSON. ^[1]

Court of Appeals of Colorado

December 9, 1901

Error to district court, Pueblo county.

Action on a bond by Nettie E. Waid against George H. Hobson. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

W.W. Dale and Cranston, Pitkin & Moore, for plaintiff in error.

Patrick & Prigmore and J.H. McCorkle, for defendant in error.

THOMSON J.

Suit by the plaintiff in error on a bond executed by Sophy D. Saufley and Robert C. Saufley, as principals, and the defendant in error, as surety. The bond was conditioned for the satisfaction and extinguishment by the principals of an incumbrance upon real estate sold and conveyed by them to the plaintiff, which condition was alleged to have been broken. The only answer in the case was made by the surety. It alleged that the consideration of the conveyance to the plaintiff was the sale by Orin C. Waid, the plaintiff's husband, to the Saufleys, of a herd of cattle in New Mexico of which he represented himself to be the owner by purchase from one Miguel Salazar, in whose care he had left them, at Las Conchas ranch; that this defendant became surety for the Saufleys at the solicitation of Mr. Waid, who affirmed, as of his own knowledge, the truth of his representations to the Saufleys, and, to induce Hobson to become such surety, offered to assign the bill of sale from Salazar to him, to enable him to protect himself as surety by taking the cattle into his own possession, and selling a sufficient number to discharge the obligation, delivering the residue to the Saufleys, and gave Hobson his personal guaranty that the cattle were where he had represented them to be, and that they would be turned over to Hobson when called for;that thereupon Hobson affixed his signature to the bond; that thereafter Hobson, by his agent, demanded of Salazar the cattle mentioned in the bill of sale, but failed to receive them or any of them; and that Salazar did not have the cattle, nor any of them, at Las Conchas ranch, or elsewhere. The reply was a general denial. The trial resulted in a verdict and judgment for the defendant. The plaintiff brings the record here by writ of error.

The testimony was conflicting, but there was enough to sustain the verdict; and if no error occurred at the trial, and the case was properly submitted to the jury, the judgment must be affirmed. The plaintiff alleged error in the following particulars: First. The opening and closing were conceded to the defendant. In his opening statement, defendant's counsel read the pleadings to the jury. The plaintiff's objection to the reading of the defendant's answer was overruled. Second. Conversations between one A.C. Bartow and Mr. Saufley, and between Orin C. Waid and Mr. Saufley, prior to the execution of the bond, were admitted in evidence against the objection of the plaintiff. Third. The objection of plaintiff to evidence of the oral guaranty given by Mr. Waid to Hobson was disregarded. Fourth. The court refused an instruction which so far as we can see, was a correct statement of the law in a case where belief is sought on the ground of false and fraudulent representations; it refused an instruction that, to enable the defendant to avail himself of the defense of failure of consideration, he must return the bill of sale; it refused to instruct that the guaranty given by Mr. Waid to Hobson was void in law; and it declined to say that, if the defendant could have protected himself against the false representations of Mr. Waid by ordinary care and prudence, he could not avail himself of the defense of fraud.

1. The details of the trial are largely within the discretion of the trial court. It does not appear that the court abused its discretion by permitting the answer to be read, or that the plaintiff was harmed by the reading. Further, the plaintiff acquiesced in the reading of the complaint; and, as that was before the...