Miller v. Mickel , 9 Colo. 331 ( 1886 )

Elbert, J.

This is a case of conflicting evidence. The plaintiff and the defendant were the only witnesses to the principal issues, and contradicted each other with regard to many items of the account sued upon. The court was the judge of their credibility, and an examination of the record discloses no grounds for the reversal of the finding and judgment as being against the weight of evidence.

The chief objection urged here is the refusal of the court below to allow the defendant credit against the plaintiff for the $180.53 overdraft on the account of the Sallie Barber Mining Company. The checks drawn by the plaintiff against the Sallie Barber Mining Company’s account were, without exception, signed by him in his official capacity as treasurer of the company. In addition to this, he distinctly notified the defendant, at the time the account was opened and thereafter, that he was acting as treasurer of the company, and would in nowise be individually responsible on any of the company’s transactions, nor for any of its debts. This part of the plaintiff’s testimony stands uncontradicted. The defendant, thereafter, could not pay out money on account of the company, and hold the plaintiff responsible therefor. Unless he intended to credit the company, he should have rejected their drafts when there were no funds in his hands to meet them. The mistake whereby the letter intended for Denver was directed to New York, in .consequence of which the telegram expected from Denver was not received, was the mistake of the defendant, for which the plaintiff was. in nowise responsible, and for the consequences of which he cannot be held to answer. The court did not err in refusing to allow the overdraft on the account of the mining company as an offset against the individual claim of the plaintiff.

The judgment of the court below is affirmed.

Affirmed.