Opinion
May 5, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 163
Gordon, Lefferdink & Legg, John Lefferdink, Lamar, for plaintiff in error.
Carl M. Shinn, Lamar, for defendant in error.
Page 164
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties are before this court in reverse order from their appearance in the trial court, but for the sake of convenience shall be referred to as they appeared at trial.
Plaintiff filed suit against defendant based upon claimed false and fraudulent misrepresentations made by defendant to plaintiff in the sale of defendant's farm to plaintiff.
In defendant's answer, he generally denied the allegations of plaintiff's complaint. The case was tried to a jury on the basis of fraud, which returned a verdict of $20,000.00 in favor of plaintiff.
I
Defendant argues that the verdict is unsupported by the evidence. We do not agree. There was a conflict in the evidence. However, upon review the record is viewed in the light most favorable to the successful party in the trial court, and every inference fairly deductible from the evidence is drawn in favor of the judgment on the verdict. Cottingham v. Star Bus Line, 152 Colo. 188, 381 P.2d 25.
II
Defendant contends that the trial court erred by allowing plaintiff to introduce evidence at variance with his pleadings. We find no merit in this contention. In his pleadings, plaintiff alleged that the output of three irrigation wells was represented as 3,300 gallons per minute, whereas the actual output was only 1,100 gallons per minute. Plaintiff also alleged by his pleadings that one of the pumps was old and worn out, although it had been represented as being new. The evidence presented indicated that the wells would produce but 600 gallons per minute and that all of the pumps were old and worn out.
Although this evidence would tend to substantiate an even greater misrepresentation than was pleaded, the nature of this particular variance neither obscured the issue of fraud, nor worked to surprise defendant at trial. The circumstances constituting the alleged fraud were stated with sufficient particularity to satisfy the requirements of R.C.P.Colo. 9(b).
III
Defendant next contends that the trial court erred when it refused to allow his three experts to testify and that the error was compounded when it allowed plaintiff's expert to testify.
We find no abuse of discretion and are therefore bound by the trial court's determination of eligibility to testify. We cannot say as a matter of law that the trial court abused its discretion in ruling on the qualifications of these various experts.
In passing upon this question, we are guided by the principle that the trial court has considerable discretion in its determination of an expert's qualifications. Its judgment is conclusive, absent a clear showing of abuse of discretion. Hoffman v. Brown, 143 Colo. 587, 354 P.2d 599.
IV
Defendant also asserts that the trial court erred in refusing to give his tendered instructions numbers one through seven. Defendant tendered the instructions without advising the court as to the necessity of giving the instructions. As to the instructions that were given, both counsel stated to the court that they had no objections to any instruction given, involving the subject matter of the tendered, but refused, instructions. Many of the tendered instructions were in direct conflict with the given instructions, yet there is nothing in the record to advise the trial judge why the tendered instructions should have been given. Similarly, on his motion for new trial, defendant merely asserted that it was error not to have given the tendered instructions. No reason, however, was set forth as to why or in what manner the court erred in refusing to give the tendered instructions.
Under R.C.P.Colo. 51, failure to object to the giving of instructions prevents the error from being raised on appeal. Furthermore, the objection must be specific, not general in nature. Sharoff v. Iacino, 123 Colo. 456, 231 P.2d 959. We find this same general principle to be applicable in the present case. Here the trial court was not informed of reasons why it might have been error to refuse to give defendant's tendered instructions in time to correct itself, and we therefore decline to consider the alleged ground of error under these circumstances.
V
Defendant asserts that the trial court erred in allowing the jury to view the premises, although he does not deny that R.C.P.Colo. 47 gives the trial court discretion in this matter. We have reviewed the record and find nothing to indicate that the trial court overstepped the bounds of propriety in allowing the jury to inspect the premises.
VI
The contract of purchase provided that plaintiff would deliver a sprinkler system to defendant with an agreed value of $3,000.00 and would assume an indebtedness of $7,500.00 owed by defendant to General Electric.
As part of his answer, defendant filed a counterclaim for $3,000.00 in damages resulting from plaintiff's failure to deliver the sprinkler system. The court instructed the jury to award possession of the sprinkler system to defendant. Defendant also asked for damages resulting from plaintiff's failure to pay the indebtedness due General Electric. The court ruled that the claim for damages resulting from the nonpayment of the debt due General electric was the subject of a separate law suit initiated by General Electric, and before entering judgment on the verdict for $20,000.00, the court ordered that $7,500.00 due on the judgment be paid into the registry of the court to await the outcome of the General Electric suit, and further ordered that plaintiff retain possession of the sprinkler system until such time as the $20,000.00 judgment was satisfied.
Defendant contends that the trial court erred in making this disposition of his counterclaim. It is undisputed that plaintiff's failure to deliver the sprinkler system, which had an agreed value of $3,000.00 as set forth in the contract, constituted a breach of the contract entitling defendant to seek relief by means of his counterclaim. The relief sought for this failure to deliver was money damages, not specific performance as was awarded by the court. Under the circumstances present here, we hold that the trial court was in error when it disregarded defendant's claim for damages. Defendant is entitled to a $3,000.00 judgment against plaintiff to be offset against the $20,000.00 judgment awarded plaintiff.
However, insofar as defendant's claim on the indebtedness due General Electric is concerned, we find that the trial court was correct in directing that the first $7,500.00 be paid into the registry of the court, pending the outcome of the General Electric suit. We fail to perceive how this order might have prejudiced the rights of either party under the contract and approve the same.
Judgment for the plaintiff is affirmed. Judgment for defendant on his counterclaim for return of the sprinkler system is reversed with instructions to enter judgment for defendant for $3,000.00 to be an offset against plaintiff's judgment.
DWYER and DUFFORD, JJ., concur.