Scheller v. Mawson

THE parties are here in reverse order of their appearance in the trial court and are hereinafter referred to as there.

Plaintiff sued defendant on a cognovit note and had judgment which was set aside on defendant's motion, and he was permitted to file his answer. Trial was to the court without a jury and judgment was for plaintiff. Defendant brings the case here on error and specifies as points for reversal: (1) That plaintiff did not purchase the note for value; (2) that under the judgment, defendant was deprived of an opportunity to raise issues on the open account and to have the case tried in its proper venue; (3) that the court improperly gave judgment on a cause of action neither pleaded, proved nor relied upon by plaintiff and expressly not in issue; (4) and that plaintiff failed to establish the allegations of his complaint.

Plaintiff, a lumber dealer at Fort Collins, sold building material and supplies to defendant, a carpenter and builder. The parties dealt with each other over a period of years treating each job as a whole. Defendant gave the note, the subject of this litigation, to the First National Bank of Fort Collins and transferred and delivered as security therefor, "agreement between the undersigned [defendant] and Dr. Guy A. Lightfoot," for whom the building was being constructed. The note was assigned to plaintiff.

1. Plaintiff purchased the note for value. He testified: "Q. And how did you come by the ownership of the note? A. I paid $705.09. Q. You paid valuable consideration for that note? A. Yes, sir." This testimony was not disputed.

[1, 2] 2. Open account — venue. The case was tried without objection as an accounting suit. Subpoenas duces tecum were issued, records were produced, identified and introduced in evidence. From these records and the testimony of witnesses, the court found for plaintiff in the sum of $704.40, together with $216.71 interest, a total of $921.11, for which judgment was entered. There was ample evidence to warrant the court in rendering its judgment. Defendant waived the question of venue by making a general appearance, filing an answer, and going to trial without raising the question of jurisdiction in apt time or at all. Kingsbury v. Vreeland,58 Colo. 212, 214, 144 P. 887.

3, 4. Court gave judgment on the case tried. The suit was on a cognovit note. It was tried as an accounting suit. Defendant impliedly consented to the trial as such. This being true, "failure to amend the complaint at all would not inure to the benefit of defendant nor affect the result of the trial." Toy v. Rogers, 114 Colo. 432, 436,165 P.2d 1017.

The judgment is affirmed.

MR. JUSTICE JACKSON dissents.

MR. JUSTICE STONE does not participate.

MR. JUSTICE ALTER concurs in the result.