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Affiliated Clearance Corp. v. Davis

Court of Appeals of Colorado, Second Division
Nov 30, 1971
491 P.2d 600 (Colo. App. 1971)

Opinion

         Nov. 30, 1971.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 601

         Hyman D. Landy, Denver, for plaintiffs-appellees.


         Herbert M. Boyle, Denver, for defendant-appellant.

         COYTE, Judge.

         The appellant, Charles A. Davis, was the defendant below and will be referred to as defendant, or as 'Davis.' The appellees, Affiliated Clearance Corporation and Mack Trucks, Inc., were the plaintiffs below and will be referred to as plaintiffs, or by name.

         Plaintiffs initiated this action to recover on a promissory note and an open account, both arising from work done by Mack Trucks on a tractor unit owned by defendant. The defendant answered with a general denial and interposed a counterclaim, alleging negligence of Mack Trucks in performing this work. Trial was to the court which found for plaintiffs on both the note and the open account and dismissed defendant's counterclaim. We affirm.

         I.

          Plaintiffs' claim on the open account is uncontested. Defendant's defense to the note is that it was conditionally given. He asserts that it was payable only if defendant's truck were satisfactorily repaired.

         The office manager for Mack Trucks, who received the promissory note, denied that the note was conditionally given. The note, which was admitted into evidence, is dated December 23, 1966, almost four months after the work in question was completed on August 30, 1966.

         In Broncucia v. McGee, Colo., 475 P.2d 336, the court stated:

'The credibility of the witnesses, the sufficiency, probative effect and weight of the evidence, the inferences and conclusions to be drawn therefrom, of necessity, are all within the province of the trial court and will not be disturbed on review unless manifestly erroneous. Brenaman v. Willis, 136 Colo. 53, 314 P.2d 691. When equally honest and intelligent men might differ as to the court's finding of fact, it will not be disturbed on appeal. * * *'

         There was evidence upon which the trial court could base its findings; and, therefore, these findings cannot be disturbed on appeal.

         II.

          The second issue raised on appeal is whether the trial court erred in dismissing the defendant's counterclaim. Davis asserts that Mack Trucks negligently installed an oversized cylinder sleeve, which caused the engine block to crack, resulting in substantial financial loss to defendant. There was conflicting testimony as to the installation of the cylinder sleeve and the probable cause of the cracking. The trial court made a specific finding that Mack Trucks, Inc., was not negligent in the installation of the sleeve and this finding is binding on us where there was evidence to support it. Broncucia v. McGee, Supra.          III.

         Defendant asserts that the trial court erred in not considering the doctrine of res ipsa loquitur.

          The assertion that the doctrine of res ipsa loquitur is applicable is without merit. To establish liability under this doctrine, Davis would have had to show: (1) that the instrumentality was under the exclusive control of Mack Trucks; (2) that the damage ordinarily would not occur in the absence of negligent repair work; and (3) that the damage was not due to any voluntary act or contribution on the part of Davis. Oil Building Corp. v. Hermann, Colo.App., 488 P.2d 1126.

         Davis failed to establish either the exclusive control requirement or that the engine block would normally not have cracked in the absence of negligent repair work. Other persons besides Mack Trucks, Inc., also made repairs on the engine.

         Judgment affirmed.

         DWYER and DUFFORD, JJ., concur.


Summaries of

Affiliated Clearance Corp. v. Davis

Court of Appeals of Colorado, Second Division
Nov 30, 1971
491 P.2d 600 (Colo. App. 1971)
Case details for

Affiliated Clearance Corp. v. Davis

Case Details

Full title:Affiliated Clearance Corp. v. Davis

Court:Court of Appeals of Colorado, Second Division

Date published: Nov 30, 1971

Citations

491 P.2d 600 (Colo. App. 1971)