Morganthau v. King , 15 Colo. 413 ( 1890 )

Reed, C.

The record shows this case to have been, tried very carefully. Many exceptions were saved on the introduction of evidence, several quite technical and unimportant, but perhaps no more technical than warranted by close practice. The number of instructions given and refused is rather phenomenal, in a case involving so few questions; seven having been given on the part of the plaintiffs, and on the part of defendant twelve were given and five refused. A large number of supposed errors were assigned.

In the admission and rejection of evidence no serious errors are found to the prejudice of the appellant. Practically, only three questions were involved and necessary to be discussed in this opinion.

The first was whether there was a contract for the completion of the work at a specified time, and for a penalty in case of failure, which appellant could set off against the money due appellees. The testimony was somewhat conflicting. There was some evidence of such a contract in the first instance, but no satisfactory evidence of one when the plan of the building was changed and the contract modified; nor does the testimony show that, at the time of the settlement, appellant claimed and insisted upon it, except in the way of a threat, if appellees refused to allow the Strousse note. The instructions given upon this point on the part of defendant are very elaborate and full, and are fully as favorable as the court was warranted in giving. The jury were warranted in finding from the evidence that no penalty for failure should be allowed. ’

Second (which was also a question of fact for the jury), whether or not an agreement was made with appellees whereby they agreed to accept the individual note of Chaffee in payment of the joint demand against appellant. On this the testimony was conflicting, but was sufficient to warrant the jury in finding that there was no such agreement, and such finding should not be disturbed.

The third and only remaining question to be determined was a question of law,— whether or not, in the absence of a special contract or consent of all the partners, the individual indebtedness of one could be legally pleaded and allowed as a set-off against a partnership claim due to the firm. That it cannot be done has been so often held, and is so elementary, that authorities in its support are unnecessary.

¥e find no error of any importance prejudicial to appellant. The rulings and instructions were fully as favorable to him as could be justified under the evidence and the law. ¥e advise that the judgment be affirmed.

Richmond and Bissell, CO., concur.

Pee Oueiam.

Por the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.