Macdermid v. Watkins , 41 Colo. 231 ( 1907 )

Mr. Justice Campbell

delivered the opinion of the court:

This is an action to recover the value of mining .stock which, in her complaint, plaintiff says she left for sale with defendant, a mining broker, under an agreement that the proceeds thereof, less the broker’s fee, were to be turned over to her by defendant, but which he has failed to do. In his answer defendant admits that the stock was left with him for sale, and that it was sold, but alleges that the contract between the parties further provided that defendant should invest for plaintiff the proceeds of the sale in such mining stocks as, in his judgment, were safe and profitable, and that he did so invest such proceeds, which plaintiff afterwards ratified and approved. -Upon trial of these issues, the jury returned a verdict for the plaintiff, and judgment went accordingly.

Each of the several grounds assigned for error is wholly without merit. Defendant says that upon the issues made by the pleadings he was entitled to open and close in producing evidence and arguing the case to the jury. The record, as abstracted, nowhere shows that request therefor was made by defendant, or that the court made any ruling upon it. If, however, the point were presented by the record, it is manifestly untenable. The answer, while it admits that the mining stock was left for sale with defendant, and that it was sold and the proceeds not turned over to plaintiff, denies the other material allegations of the complaint, and alleges, under the guise of an affirmative defense, a contract between the parties quite different from the one set out in the complaint, whereby defendant, instead of being required to turn over the proceeds, less his fee, to the plaintiff, as the complaint averred, lie was authorized to, and did, invest in other mining stocks. Had no evidence been introduced by either party, judgment would certainly have gone against the plaintiff; hence, the burden being upon her to prove her cause of action, she was entitled to open and close with her evidence and argument.

The point that the court, over defendant’s objection, admitted improper testimony, is not well taken. The abstract is flagrantly defective in several respects, and particularly in failing to reproduce the evidence, or enough of it to enable a reviewing court to pass upon the objection we are considering. It does, however, disclose that the particular evidence to the admission of which defendant now objects was elicited upon cross-examination of defendant himself. In substance it bore upon the value of the mining stocks which he says he bought for plaintiff, and his connection with the corporations, as a director and stockholder, which issued the purchased shares. We may well presume that, in his examination in chief, to which there is no reference at all in the abstract, defendant was interrogated as to these very matters, and that the cross-examination was strictly germane thereto. Besides, since the answer says that defendant, under the contract, might invest plaintiff’s money in mining stocks which, in his judgment, were safe and profitable, the admitted evidence was clearly relevant and proper.

The argument directed to the error as to the alleged insufficiency of the evidence to uphold the judgment must be entirely disregarded. There is no attempt to abstract the evidence, and our rules do not require us to travel outside the abstract to search for an excuse to reverse a righteous judgment.

The objection that the court refused to give certain instructions tendered by the defendant requires no consideration whatever. The abstract does not set ont any of the instructions which the court gave to the jury, and it may be that the substance of the instructions tendered by defendant and refused by the court were embodied in the instructions that were given.

Aside from the foregoing considerations, we might dismiss the appeal for reasons already indicated, viz., that the defendant in his abstract has not properly preserved or presented the various points on which he relies, as our rules require shall be done.

The judgment is affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Gabbert concur.