Opinion
Feldhamer & Hochstadt, Nathan Davidovich, Denver, for plaintiff in error.
Gorsuch, Kirgis, Campbell, Walker & Grover, Charles E. Rhyne, Denver, for defendants in error.
DWYER, 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.
The parties are here in the same order in which they appeared in the trial court and will be referred to as they there appeared.
In this action for goods sold and delivered, plaintiff recovered a judgment against the defendant corporation for the purchase price of $3,429.00. A judgment of dismissal was entered in favor of the individual defendants who were stockholders and officers of the corporation.
The goods were billed and shipped to the corporation and its liability was not in issue. Plaintiff claimed the individual defendants were also liable on the theory that they had agreed to pay for the merchandise. Defendants denied any individual undertaking and affirmatively pleaded the statute of frauds. Trial was to the court without a jury. After the plaintiff completed presentation of his evidence, the individual defendants moved for dismissal on the grounds that, upon the facts and the law, the plaintiff had shown no right to relief. The court granted this motion.
The plaintiff contends that the trial court was required to consider the evidence in the light most favorable to the plaintiff in ruling on the motion to dismiss at the conclusion of plaintiff's case. In a trial to the court, sitting without a jury, the trial court may determine the facts and render judgment against the plaintiff at the close of plaintiff's case. R.C.P.Colo. 41(b)(1). The question on review of such action is not whether the plaintiff made a prima facie case, but whether a judgment in favor of the defendants was justified on the plaintiff's evidence. Rubens v. Pember, Colo., 460 P.2d 803; Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
The plaintiff also contends that the trial court erred in failing to make findings of fact and in excluding certain testimony by one of plaintiff's witnesses. At the time of the trial, the plaintiff failed to object to the lack of findings of fact and he failed to make an offer of proof on the testimony that was excluded. Furthermore, neither of these points was raised in plaintiff's motion for a new trial. Therefore, these issues are not properly presented for appellate review. Fladung v. City of Boulder, Colo., 438 P.2d 688 (May 18, 1968).
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.