Opinion
Oct. 14, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 645
Forest E. Clark, Jr., Denver, for plaintiffs in error.
Richard N. Graham, Englewood, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiffs in error were defendants below and shall be referred to in the same manner or by name. Defendant in error, plaintiff below, initiated this suit for the recovery of $6,145.47 allegedly owed by defendants on a past due account. Defendants denied liability, and trial on the issue was to the court.
The court found that the individual defendants were in partnership under the name of Davco Motors, and that individually and as a partnership the defendants had purchased a number of automobiles from plaintiff on an open account. The court also found that defendants still owed the purchase price on three of the four vehicles which plaintiff claimed had not been paid. Judgment for plaintiff in the amount of $4,245 was entered. Plaintiff had included in the complaint charges made by it for service costs, but the court disallowed the added service costs but did order that interest be added to the judgment.
Defendants allege three assignments of error on appeal which we shall discuss.
I.
The first assignment of error is raised by defendant C. T. Cook. It is Cook's claim that he is not liable for at least $1,250 of the judgment by reason of the fact that he entered into partnership with Davis in May 1964, two months after one of the unpaid for vehicles included in the judgment was procured by Davis. However, in view of the Bulk Sales Act, C.R.S.1963, 18--1--1 et seq., in effect at the time of this transaction, we find no merit to defendant's assertions.
Failure to comply with the provisions of the Bulk Sales Act makes the transferee liable to the creditors to the extent of the stock in trade procured by the transfer, C.R.S.1963, 18--1--8. The sale or transfer of part interest in a business so as to form a partnership comes within the scope of the Bulk Sales Act. Brownson v. Lewis, 233 Or. 152, 377 P.2d 327; Sampson v. Boysen, 9 Cal.App.2d 413, 50 P.2d 95.
In this case we find that the Bulk Sales Act was applicable to the formation of this partnership, and therefore Cook's failure to comply with its provisions made him accountable to the creditors of Davis for his share of the stock in trade at the time he entered the partnership. Waterman v. Perrotta, 144 Colo. 117, 355 P.2d 313. II.
In the second assignment of error the defendants argue that this is one of those instances where the evidence simply does not support the judgment.
Plaintiff's accounting supervisor testified that the defendants had been on an open account with the plaintiff, and that they had been billed for the automobiles after they had taken delivery. The supervisor also stated that plaintiff's records indicated that defendants had not paid for four of the automobiles procured by them. Although defendants failed to produce receipts for payment, they testified that payment had been made for these automobiles. Based upon this conflicting evidence, the trial court found that the defendants had failed to pay for three of the four vehicles in question.
Our role is not to pass upon the credibility of the evidence, merely the sufficiency. Berae Co. v. Gorman, Colo., 452 P.2d 379. Under the facts as related above, there was sufficient evidence to support the trial court's judgment that defendants had failed to pay for three of the four vehicles.
For similar reasons the assertion by plaintiff that the judgment should be increased to the full amount prayed for must fail. Since the issue as to whether or not the money allegedly owed on this fourth vehicle was adequately proved was a question of fact to be determined by the trier of fact, the trial court's decision on that issue is binding on us where, as here, there is evidence to support its judgment.
III.
Under the third assignment of error defendants charge that since the plaintiff failed to pray for interest in its complaint, it was error for the trial court to grant interest. We disagree with this assertion.
Interest on an account is provided for by statute in Colorado, C.R.S.1963, 73--1--2. Under this statute, the creditor is entitled to receive interest from the date the account becomes due. In the instant case the service costs prayed for were more than the amount of interest accrued on the account. The fact that interest as such was not prayed for in the complaint does not necessarily defeat plaintiff's right of recovery in the instant case. Hays v. Arbuckle, 72 Colo. 328, 211 P. 101.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.