Opinion
March 6, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Record, on appeal by buyer from denial of its motion for assessment of expenses and attorney fees incurred in making proof that materials shipped by seller did not conform to the contract, justified finding that seller had reasonable grounds in refusing to answer affirmatively buyer's request for admissions. Rules of Civil Procedure, rule 37(c).
Margolin & Kirwan, F. Philip Kirwan, Kansas City, Mo., Weller, Friedrich, Hickisch & Hazlitt, J. R. Hickisch, Denver, for plaintiff-appellee and cross-appellant.
Quiat & Quiat, P.C., James C. Bull, Denver, for defendants-appellants and cross-appellees.
Page 472
DWYER, Judge.
Defendants DuWald Steel Corporation (DuWald) and Commercial Iron & Metal Company (Commercial) appeal from a judgment in the sum of $9,142 entered against them in an action brought by plaintiff, I. J. Cohen & Company, Inc., for breach of a written contract for the sale of scrap metal. Defendants assert that the judgment is without support in the record and that the jury was not properly instructed. Plaintiff cross-appeals from the denial of its motion under C.R.C.P. 37(c) for assessment of expenses and attorneys fees incurred in making proof of matters defendants refused to admit.
Plaintiff, a scrap metal broker and supplier, purchased the scrap metal from defendants' place of business for resale to a steel mill in Texas. DuWald, pursuant to its contract with plaintiff, shipped eight carloads of scrap metal to the mill in Texas. The operator of the mill rejected the shipment. Plaintiff notified DuWald of the rejection of the shipment, and DuWald thereafter sold the scrap metal to another consumer in Texas. Plaintiff then commenced this action against defendants DuWald and Commercial. Plaintiff alleged that the scrap metal shipped did not conform to the contract and that plaintiff was entitled to recover its $8,000 down payment and the $1,142 profit it would have realized if the resale transaction had been completed. In its answer, defendant DuWald admitted the contract but denied that the goods did not conform to the contract. DuWald also filed a counterclaim seeking to recover damages resulting from plaintiff's allegedly wrongful rejection of the goods which DuWald alleged conformed in all respects to the contract. Defendant Commercial denied that it was a party to the sales contract.
Defendant Commercial contends that there is no evidence in the record establishing that it was a party to the sales contract and that the judgment entered against it should be reversed. The record discloses that Commercial is a partnership and that DuWald is a corporation. The contract for the sale of scrap metal was in the form of an order sent by the broker to the seller. The seller was designated as Commercial, but the contract was accepted by DuWald. After the contract was returned to plaintiff by DuWald, plaintiff sent its check for the $8,000 down payment to DuWald. The shipment was then made by DuWald, and thereafter the entire transaction was treated by the parties as one between DuWald as seller and plaintiff as buyer. DuWald and Commercial are separate legal entities, and there is no evidence that Commercial is a party to the sales contract upon which this action is based. Accordingly, the judgment against Commercial must be reversed.
DuWald contends that the verdict in favor of plaintiff on the complaint and against DuWald on its counterclaim is not supported by the evidence. In the sales contract, the goods were described as 'short and/or crushed shoveling turnings & Borings'--a term of art within the trade. The factual issue tendered by the pleadings and submitted to the jury was whether the goods shipped conformed to this description in the contract. The evidence on this issue was in conflict, and the jury resolved the conflicting evidence in plaintiff's favor. The jury's verdict is supported by substantial evidence, and the court's judgment based on that verdict is affirmed. Book v. Paddock, 129 Colo. 84, 267 P.2d 247; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862.
DuWald contends that the trial court was in error in refusing to instruct the jury on the defenses of waiver and estoppel. Neither defense was asserted in the answer, and, at the trial, defendant presented no evidence which would have supported either defense. The trial court properly denied defendant's motion made at the close of the evidence to permit amendment of the answer to include these defenses and properly refused to instruct on them.
DuWald tendered 21 instructions which were rejected by the court. Defendant also objected to several instructions given by the court. We have reviewed the instructions given by the court and those tendered by defendant and refused by the court and find no error in the court's rulings with respect to such instructions.
Subsequent to the entry of judgment in its favor, plaintiff applied to the court pursuant to C.R.C.P. 37(c) for an order requiring defendant to pay the expenses and attorneys fees plaintiff incurred in making proof of the truth of matters which DuWald denied when answering plaintiff's request for admissions. The record discloses that DuWald, in response to plaintiff's request for admissions, denied that the scrap metal it shipped did not meet the contract specification of 'short and/or crushed shoveling turnings & borings.' C.R.C.P. 37(c) provides:
'Expenses on Failure to Admit. If a party fails to admit . . . the truth of any matters as requested under Rule 36, and if the party requesting the admissions thereafter proves . . . the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that: (1) The request was held objectionable pursuant to Rule 36(a); or (2) the admission sought was of no substantial importance; or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter; or (4) there was other good reason for the failure to admit.'
The trial court, in denying the motion, found that the defendant had reasonable grounds to believe that it might prevail on the matter. Plaintiff asserts that the court's finding in this regard is not supported by any evidence presented by defendant. It, however, was unnecessary for defendant to present such evidence. The record establishes that the facts to which the requests for admissions were directed were the ultimate facts in issue at the trial. Conflicting evidence was presented concerning these factual issues, and the record of the trial justifies the court's finding and consequently its denial of the motion.
The judgment against Commercial Iron & Metal Company is reversed; the judgment against DuWald Steel Corporation is affirmed; and the judgment denying plaintiff's motion to assess costs is affirmed.
ENOCH and SMITH, JJ., concur.