Opinion
June 17, 1975
Editorial Note:
This case has been marked 'not for publication' by the court.
Januarajs & Anderson, James G. Anderson, Aurora, for plaintiff-appellee.
Berenbaum, Berenbaum & Susman, Michael L. Ehrlich, Denver, for defendant-appellant.
STERNBERG, Judge.
Plaintiff, Builder's Gallery, Inc., obtained a judgment against defendant, Kent Enterprises, for the sum of $1,605.63 alleged to be due and owing for carpeting purchased by defendant from plaintiff. Defendant appeals and we affirm.
Defendant contends that: a) The amount had been paid, b) the evidence presented at trial by plaintiff was inadequate to support the judgment, and c) the court did not make sufficient findings of fact and conclusions of law to serve as a basis for appellate review. Since the latter point was not raised in the motion for new trial, we do not consider it. See C.R.C.P. 59(f), and Furer v. Allied Steel Co., 174 Colo. 171, 483 P.2d 212.
At trial, defendant produced two checks, one in the amount of $2,555.38 and the other for $99.29, both of which were payable to plaintiff and had been endorsed and negotiated. As was the case with all of defendant's checks, a printed form endorsement, acknowledging that payment satisfied all claims, appeared on the back of these checks. Defendant argues that acceptance of these checks constitutes an accord and satisfaction. However, plaintiff's secretary-treasurer, Sally Knight, testified that these checks wee received with invoices to which they related, and that those invoices concerned transactions between the parties different from the sale that led to this lawsuit. Based upon a ledger which she had before her, she testified that those checks were properly credited in the ledger to the correct invoices, and that invoice #3156 for the amount of $1,605.63 was still unpaid. Since the trial court had before it conflicting evidence on the issue, its acceptance of plaintiff's evidence and rejection of defendant's, does not constitute error. See Byrne v. Stone & Birkle, Inc., 156 Colo. 445, 399 P.2d 940.
In proof of its account, plaintiff offered the testimony of Sally Knight and a copy of an invoice in the amount of $1,605.63. While the witness testified as to the contents of the ledger, it was not offered into evidence. Defendant would have us hold that the only way an action of this type can be proven is by submission of the ledger into evidence. This is not the law. See s 13--90--103, C.R.S.1963 (C.R.S.1963, 154--1--3); McDonald v. Clough, 10 Colo. 59, 14 P. 121; Gifford-Hill & Co. v. Wagner, 32 Colo.App. 220, 509 P.2d 322. The testimony of the witness Knight together with the invoice were, therefore, sufficient to establish plaintiff's case.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.