Opinion
Sept. 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ott & Caskins, Denver, for plaintiff in error.
No appearance for defendants in error.
COYTE, Judge.
The parties appear in the same order as they appeared in the trial court, wherein plaintiff in error was plaintiff below. There has been no appearance by defendants in error in this court and their time to appear has long since expired. Plaintiff requests that the matter be determined Ex parte. C.R.C.P. 115(d) provides in part that, 'If defendant in error fails to file his brief as required disposition of the writ of error may be had ex parte.' Accordingly, we have elected to determine this appeal Ex parte on plaintiff in error's opening brief.
Plaintiff alleged in its complaint that the defendants executed and delivered to plaintiff a promissory note. Defendants generally denied the allegations of the complaint.
At the trial, plaintiff was unable to prove the execution of the note and the signatures of the defendants thereon. At the conclusion of plaintiff's evidence, the trial court refused to admit the note into evidence. Plaintiff then moved to amend its complaint by adding a second count of Quantum meruit. This the court refused to do and dismissed plaintiff's complaint.
Plaintiff claims error on two grounds, (1) the failure of the trial court to admit the note into evidence, and (2) the refusal of the trial court to allow plaintiff to amend its complaint after it had presented its evidence.
The court found that the signatures on the note had not been properly identified; that plaintiff had the burden of going forward and showing that the signatures were genuine; and that without proof of the due execution of the note the same could not be introduced. The trial court was the trier of the facts and as such was the sole judge of the credibility of the witnesses and its determination of facts will not be disturbed on appeal unless there is a clear abuse of discretion. People ex rel. Dunbar v. Lee Optical Co., Colo., 452 P.2d 21. The record does not reveal such an abuse in this case. The court could not admit the note into evidence when it was not properly identified.
The case was tried on the issue of the note. Plaintiff being unable to prevail on the issue cannot, at the conclusion of the trial, change its entire theory of the case to one of Quantum meruit, particularly where the proof throughout the trial was restricted to the issue of the note. McKinley v. Denver & Rio Grande Western R.R. Co., 119 Colo. 203, 201 P.2d 905.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.