Opinion
June 30, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Angelo F. Mosco, Pueblo, for plaintiff in error.
John R. Wall, Pueblo, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
L. B. Walker Radio Co. of Pueblo, a corporation, brought an action against Rocco DiPaolo, d/b/a Rocco's Electric & Appliance, for goods sold and delivered. The case was tried to the court. Defendant brings this appeal from a judgment in favor of the plaintiff in the amount of $709.70, plus interest at six per cent from August 20, 1965, plus the costs of the action. Two questions are raised by this appeal:
First: Did the trial court err in awarding plaintiff judgment for C.O.D. charges in the amount of $494.51?
Plaintiff's records show that goods shipped C.O.D. were not paid for on delivery. The defendant testified that he had paid all C.O.D. charges. The defendant argues that all of plaintiff's evidence as to nonpayment of the C.O.D. shipments must be discounted on the theory that it is common knowledge that goods shipped C.O.D. will not be delivered without payment. Essentially defendant asks that we rule that evidence of goods being shipped C.O.D. and of receipt raises a conclusively legal presumption of payment. We find no legal support for such an assertion. In our opinion, whether the goods were paid for or not was a factual question to be resolved by the trial court. The trial court resolved this issue against the defendant. We are required by an unbroken line of authority to view the evidence in the light most favorable to the prevailing party in the trial court. Schwenk v. Bolis, 157 Colo. 392, 402 P.2d 643; Harvey v. Irvin, 156 Colo. 391, 401 P.2d 266; Bennett v. Accounts, Inc., 155 Colo. 461, 395 P.2d 225. We find no error in the trial court's findings.
Second: Did the trial court err in awarding plaintiff judgment for interest prior to August 20, 1965 in the amount of $58.54?
The complaint alleged that the defendant was indebted to the plaintiff in the sum of $709.70 and asked recovery for such amount. Defendant argues that this amount of $709.70 includes $58.54 in interest which had accrued under his account with plaintiff prior to the time suit was commenced, and that since no interest was specifically sued upon, defendant is entitled only to the reasonable value of the merchandise and not the interest thereon. This argument overlooks the fact that this was an action on an account debt, and that as of the time the suit was commenced the account balance owed plaintiff was $709.70. That the interest was not specifically set out in the complaint does not defeat plaintiff's right to recover. In Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051, our Supreme Court stated:
'* * * If sufficient notice concerning the transaction involved is afforded the adverse party, the theory of the pleader is not important. If, under the facts, the substantive law provided relief upon any 'theory,' the cause should proceed to judgment. * * *'
We find no error in the judgment of the trial court. Judgment is affirmed.
COYTE and PIERCE, JJ., concur.