Butler v. Howell , 15 Colo. 249 ( 1890 )

Mr. Justice IIayt

delivered the opinion of the court.

The first error assigned relates to the admission in evidence of a certain exhibit. This exhibit, which was admitted over the objection of appellant, appears to be a part of a promissory note signed by Marks. It was shown to be in Marks’ handwriting, and was admitted, in connection with the testimony of appellee, solely for the purpose of showing that there had been a series of business dealings between Marks and herself. "We think the testimony competent in view of the nature of the issues. Appellee’s title was attacked on the ground of fraud, and for failure of consideration. It was proper, under the circumstances, for appellee to show that she had given a good consideration for the property, and the portion of the note introduced was competent in corroboration of the testimony upon this point. Appellee testified that Marks had been her debtor for some time prior to the purchase by her of the property in controversy; that to evidence said indebtedness he had executed to her several promissory notes, which were surrendered up to Marks at the time of the purchase of the stock of goods from him as a part of the purchase price, and by Mm torn, up; that she had afterwards picked up one of the pieces containing a portion 'of one of said notes, and that this was the piece.

When the witness Porges was on the stand the appellee propounded to him this question: “ What is the value of these goods ? ” The witness was allowed to answer the question against the appellants’ objection, and the action of the court in permitting such answer is made the basis of the second assignment of error. It is contended here that this testimony was improperly admitted, for the reason that no sufficient foundation was laid to warrant the witness to give an opinion upon the question of value. It does not appear that this objection was made in the court below, at least not in its present form, and for this reason it must be denied. If the specific objection had been made at the trial, we doubt not the competency of the witness would have been more' fully established. We think, however, sufficient appears to show that the witness was qualified to testify as to the value of the property in controversy. In answer to preliminary questions', the witness stated that he had been engaged in the merchandising business in the neighboring town of Dillon for six years; that he attended the sheriff’s sale and purchased the entire stock in controversy. He further said that he estimated the value upon the basis of first cost, freight, etc. We think the testimony was properly admitted.

The third assignment of error is the same as the second and need not be separately considered.

The fourth relates to the introduction in evidence of the bill of sale for the goods in controversy, given by Marks to the appellee, and is abandoned in this court.

The fifth relates to the introduction in evidence of a certain bill for merchandise purchased by appellee after she ■ took charge of the Marks stock. The bill appears to be in form of a monthly statement, such as it is usual for Avholesale merchants to send out to their customers at the end of each month. We think the testimony was properly admitted. The real controversy in the case is upon the sufficiency of the change of possession from Marks to appellee. The fact that appellee was continually replenishing the stock while conducting the business in her own name was a proper circumstance for the consideration of the jury. It, perhaps, should be given but slight weight; but the question here turns upon its admissibility and not upon the weight to be accorded it.

The remaining assignment of error relates to the instructions given by the court to the jury. It is not necessary to consider these instructions in detail. It is sufficient to say that they fully and accurately state the law applicable to the facts as presented, as the same has been declared in repeated decisions of the court. Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 526; Bassinger v. Spangler, 9 Colo. 175.

The question upon the sufficiency of the change of possession was fairly submitted to the jury, and decided against appellants. It is in evidence that at the time of the sale she took possession of the property, locked up the storeroom containing the goods, and retained the key until the levy of the attachment writ; that, between the time of the purchase by her and the levy, the store remained closed the greater part of the time; that when purchasers came for goods she went from her place of business opposite to the Marks store, and there waited upon them; that she replenished the stock as occasion required with goods purchased by her; that Marks did not, after the sale, exercise any control or supervision over the business, although at times, when requested, he came to the store for the purpose of pointing out certain goods with which appellee was not familiar.

To overthrow the testimony, a number of witnesses living in the neighborhood were called by appellant, and testified that they had not noticed any change in possession, but, upon further examination, the means of information of these witnesses was shown to be very meager, and the testimony correspondingly weakened. Under these circumstances, the finding of the jury in appellee’s favor upon the question of change of possession cannot be disturbed.

Finally, the judgment is challenged as being excessive. The opinion of the witnesses varied materially as to- the value of the goods. The jury, in the verdict, placed the value at $1,200, the price which, according to the testimony, appellee paid for the property. And it is in evidence that the goods were actually worth this amount, although some witnesses placed the value lower. Judgment was finally entered for $1,000 and costs. We cannot say, under the circumstances, that the same is excessive. The judgment will be affirmed.

Affirmed.