Carter v. Pigg

361 P.2d 437 (1961)

Walter CARTER, Plaintiff in Error,
v.
Marvin H. PIGG, doing business as Pikes Peak Hearing Center, Defendant in Error.

No. 19287.

Supreme Court of Colorado. In Department.

April 24, 1961.

Gail F. Ouren, Monte Vista, for plaintiff in error.

Gordon H. Rowe, Jr., Monte Vista, for defendant in error.

DAY, Justice.

This writ of error to the judgment of nonsuit entered in the trial court against the plaintiff in error, plaintiff below, involves an action for a refund of $250 paid by plaintiff for a hearing aid purchased from the defendant. The plaintiff deemed it unsatisfactory, returned it, and asked for a refund of the purchase price. On being refused, he brought suit in the county court, which resulted in an unfavorable verdict. He appealed to the district court, which determined also that he was not entitled to recover.

There are no questions of law involved. The controversy, being entirely factual, presented the question whether the hearing aid was as represented. The trial court heard the evidence, whereby it was shown repeated attempts—to the number of six—were made by the defendant to satisfy the plaintiff. The court specifically found: (1) the evidence did not indicate that the hearing aid failed to function; (2) there was no breach of "any implied warranty," and (3) Carter's failure to cooperate in the adjustment of the hearing aid was responsible for its failure to give him satisfaction.

These findings are amply supported by the evidence, and will not be disturbed on review. The judgment is affirmed.

MOORE and FRANTZ, JJ., concur