Trinidad Creamery Co. v. McDonald , 82 Colo. 328 ( 1927 )

McDONALD, plaintiff below, had a verdict and judgment against the plaintiff in error, defendant below, for one dollar, in an action for converting and adulterating plaintiff's cream, and the defendant brings error. The defendant set up a counterclaim which charged plaintiff with the same conduct with which he charged defendant. The verdict on the counterclaim was for plaintiff.

The complaint alleged and the evidence showed that the plaintiff and defendant were competing in Trinidad in the purchase of cream and in the manufacture and sale of products therefrom, and that they purchased the cream from farmers who were scattered over a wide area around the city and who consigned it to them by express and parcel post; the complaint also alleged and there was evidence to show that defendant took from the express company cream which was consigned to plaintiff and appropriated the same to its own use and that it took cans of plaintiff's cream, appropriated part, replaced it with buttermilk and returned the cans with the adulterated contents to plaintiff. Plaintiff claimed that, since he bought the cream at a price based on his own test of its butterfat content, such conduct destroyed his reputation with the farmers and so injured his business.

The plaintiff in error makes five points which we will take up in their order:

1. That the verdicts are not supported by the evidence. There is direct evidence that defendant repeatedly took plaintiff's cream from the express company and from the post office. The defendant's evidence offers an explanation of this, but the truth and sufficiency of such evidence was for the jury.

2. That the trial court admitted evidence of other transactions by defendant like those of which it was accused by plaintiff. This was right. This evidence was competent in support of plaintiff's claim that the defendant's adulteration of his cream was in pursuit of a plan or design (Bruno v. People, 67 Colo. 146,186 P. 718), and because, being charged with malice, (in re exemplary damages) defendant claims ignorance of wrong doing, the question of his guilty knowledge thus becoming material and relevant. Id.

3. That the court erred in its failure to instruct the jury what the purpose of the evidence above mentioned was. The court did so instruct them.

4. That the verdict of one dollar for plaintiff is not supported by any theory of the case. The jury may have found that defendant took plaintiff's cream, but that the proof of damage or of the amount taken was insufficient and thus their verdict would be justified.

5. That the motion for new trial on the ground of new evidence should have been granted. The new evidence is to the effect that certain of plaintiff's witnesses have, since the trial, said that their testimony was false. The general rule is that a new trial will not be granted for new evidence which is impeaching or discrediting merely, and while it is true that if such new evidence will wholly destroy the case upon which the verdict rests, courts will sometimes grant, and ought to grant the new trial, yet in the present case that would not be so, because the evidence claimed to be false was of adulteration merely, and there is other evidence of adulteration and so the new evidence is not only merely discrediting, but is cumulative. It is cumulative also because the cross-examination of these discredited witnesses for plaintiff shows that some evidence of the same kind was available to defendant at the trial. For example the witness Jansen was asked whether he had not told certain named persons that the facts to which he was testifying were not true. We must presume that counsel was sincere in these questions and if so these persons might have been called. The new evidence now offered, therefore, is cumulative to what at least might have been presented to the jury.

The plaintiff in error also argues that, if it is to be charged with taking plaintiff's cream, plaintiff must be charged with taking its cream. True the jury might have so found, but they may have believed plaintiff's explanation of what taking he did while disbelieving or holding insufficient the explanation by defendant. We cannot usurp their functions.

Judgment affirmed.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE WHITFORD and MR. JUSTICE SHEAFOR concur.

On Rehearing.