Melsheimer v. Hommel

Me. Justice Hayt delivered the opinion of the court. Ho question as to a defect of parties defendant was raised in the court below, and consequently this question will not be considered upon appeal. Civil Code 1883, §§ 55, 59, 60; Great West. Min. Co. v. Woodmas of A. Min. Co. 12 Colo. 46. The jury seems to have been fully and fairly instructed upon the law of the case. In fact, it is not claimed that the trial court committed any error in this regard. The only errors relied upon relate to the sufficiency of the evidence to support the verdict. The plaintiff, Hommel, is an old man of foreign birth, and unused to our language. He was nearly eighty years of age at the time of the trial, and although in his long examination the answers at times became confused, and even contradictory, this should occasion no surprise, particularly, as several years had elapsed since the occurrence of the events about which he was called upon to testify. The weight to be given to this and other evidence was a matter exclusively for the jury to determine. The salient points in the case were fully covered by other witnesses introduced on behalf of plaintiff. It is contended by counsel that the note is not a firm obligation, because it is signed “ Max Melsheimer'& Co.,” and not “ Melsheimer & Co.; ” the latter, it is claimed, being the'name adopted by the firm, and under which its business was usually transacted. The evidence for the plaintiff is to the effect that the money was advanced upon the credit of the firm; that Anderson, in signing the name Max Melsheimer & Co., intended to bind the firm by so doing, and that this was within the scope of his authority; that the proceeds of the note were used in the firm business; that defendant Melsheimer was informed of the existence of the note soon after it was executed, and with this information he then said to plaintiff, “ You needn’t be afraid, you get your money; ” that afterwards he recognized the note as a valid obligation of the firm, and paid interest upon it eight or ten times. Opposed to this evidence is the testimony of [478] the defendant alone. The verdict is for the plaintiff generally. Under the circumstances it is entirely unimportant as to whether the name of the copartnership was in fact Melsheimer & Go., as claimed by the defendant, or Max Melsheimer & Co., the name appearing upon the note. The evidence is amply sufficient to support the verdict in either event. The judgment must therefore be affirmed. Affirmed. Me. Justice Elliott took no part in the consideration of this cause.