Melnick v. Bowman

Mr. Justice Bakke delivered the opinion of the court. Action for possession of personal property, or the value thereof. The ease was previously before this court on the sufficiency of the pleadings, the opinion appearing in volume 99 of our Colorado reports at page 311, to which reference is made for a statement of the case. We in that opinion reversed the judgment of the trial court, which had sustained a demurrer to the second amended complaint, and sent the case back with instructions to reinstate the amended complaint, and for further proceedings. The parties will be herein designated as they appeared in the trial court. Pursuant to our order, after issues joined, a trial was had to the court without a jury. At the close of plaintiff’s case, defendants interposed a motion for nonsuit which was denied. At the conclusion of the trial, the judge made findings of fact as follows: “The court finds that the California Meat Company at the time of the execution of the original chattel mortgage on the 23rd day of November, 1931, was in an involved condition. Judge Holland, in his opinion in the case of Bowman v. Melnick, 99 Colo. 311, says at page 315: “ ‘If the allegation as to the then existing indebtedness is true, the defendants as directors and sole stockholders, are chargeable with knowledge of the existing financial condition of the company. By the transaction they added nothing to the assets of the indebted corporation, but [386] did increase its liabilities to the amount of the questioned chattel mortgages, and by the transaction they shifted their position from that of stockholders of an involved corporation to that of preferred creditors with a first lien upon the assets of a burdened corporation from which they severed their connections. If the corporation was already burdened with debt, this transaction added to its insolvency so' far as general credit, then or thereafter, was concerned.’ ‘ ‘ The court feels that the evidence sustains these allegations, and that by the execution of the chattel mortgages nothing was added to the assets of the corporation, but its liabilities were increased, and that the former stockholders by this transaction merely shifted their position from that of stockholders of an involved corporation to that of preferred creditors. “The court further finds that the chattel mortgages covered the entire assets of the corporation. “The court is of the opinion that the defendants were not guilty of intentional fraud, and while they may have made the transaction in perfect good faith, nevertheless the fact that the corporation was indebted at the time the chattel mortgages were executed, they should not have further encumbered its assets. “It has been difficult for the court to determine the value of the property as of the date of the conversion, but after a careful consideration it is of the opinion that it is of the sum of $1,000, and against it the defendants are entitled to a credit of $300 for rent paid and $116.52 taxes paid. “Judgment will enter in accordance with the findings. “(Signed) Joseph J. Walsh.” The assignments of error alleged, generally, that the judgment is contrary to the law and evidence. This, we dispose of by saying that the findings and judgment of the trial court were based upon conflicting testimony, and upon an examination of the record we. are satisfied that there was sufficient competent evidence to sustain the [387] court’s findings, and the judgment will not be disturbed on these general assignments. Three additional assignments of error, which we shall consider briefly, are as follows: (1) That the trial court erred in finding a money judgment in favor of the plaintiff when the action was one for possession of personalty; (2) that the court improperly admitted a stipulation signed by the respective counsel in the bankruptcy proceeding; (3) that the court erred in refusing to grant the nonsuit. 1. The prayer in the complaint reads as follows: “Wherefore, plaintiff prays judgment for the possession of the property in this amended complaint described, or for the sum of $3,000, its value, and for costs.” Section 87 of the Code of Civil Procedure provides that in an action for possession of property the plaintiff shall at the commencement of the action “file a written undertaking” if given possession of the property. No bond was given in this case and possession remained with the defendants. The case was not tried on the theory that plaintiff was entitled to possession; but on that of conversion of the property by defendant. We think conversion was sufficiently alleged in the complaint. Section 247 of the Code of Civil Procedure (found in ’35 C. S. A., vol. 1, c. 18) provides that “in an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. ” Some of the decided cases under this provision indicate that in a proper case the court may award a money judgment, without its being in the alternative, even though technically it was designated an action in replevin. It is the proof of the facts under the allegations in the complaint, and not the prayer, that determines the relief to be given, and, under the facts as established at the trial, we feel that there was no abuse of discretion on the part of the court in awarding the money judgment. 2. No error was committed by admitting the [388] stipulation which had been signed by the respective counsel in the bankruptcy proceeding. It was not admitted as being conclusive, but it was material because it dealt with the same property, between the same parties, involved in this litigation, and under the circumstances here its admission was not improper. 22 C. J. 339. At most it was cumulative evidence and, if error, was harmless, and as such is not ground for reversal. Moynahan v. Perkins, 36 Colo. 481, 85 Pac. 1132. 3. Whatever may have been the deficiencies of proof at the time defendant’s motion for a nonsuit was interposed, such deficiencies were supplied by evidence offered by defendants in their own behalf. Denver & Rio Grande Ry. Co. v. Henderson, 10 Colo. 1, 13 Pac. 910; Hochstadter v. Hays, 11 Colo. 118, 17 Pac. 289. As above indicated we feel that there was sufficient testimony to justify and support the findings of the trial court, and, since the law of the case was established by this court on the former review, the judgment is affirmed. Me. Justice Young and Me. Justice Knous specially concur. Me. Justice Bouck dissents.