Opinion
Rehearing Denied Jan. 18, 1972.
Page 138
Carl H. Seeliger, Jr., Richard W. Bryans, Denver, for plaintiff-appellant.
Gary L. Polidori, John J. Gaudio, Bernard E. Engler, Denver, for defendant-appellee.
COYTE, Judge.
Plaintiff in the trial court, Thriftway Markets, Inc., whom we will call 'Thriftway,' brought suit against defendant Louis Polidori, individually, and doing business as Lads Thriftway. Trial was to the court.
Thriftway brought suit for $17,022 for goods sold and delivered to defendant. Defendant generally denied the allegations of the complaint.
Thriftway's sole witness, a secretary in the organization, testified that she handled milk and dairy product billings for Thriftway during the years in question. She also testified that she sent bills to a 'Lads Thriftway' store and that there were due and outstanding billings in the sum of $17,022. The genuineness of the delivery tickets and the billings were admitted, and both were admitted into evidence without objection. The delivery tickets were for milk products and ice cream. Some were addressed to 'L A D,' 1280 South Sheridan, and others to 'Lad T.W.', 1280 South Sheridan. The billings were weekly and were separate for ice cream and milk. Delivery tickets were all dated and showed the store group as 'T way.' The billings were also dated and showed the billing party as 'Thrift-way Markets, Inc.'
When plaintiff had completed the presentation of its evidence, the court, without making findings of fact and conclusions of law, granted defendant's motion to dismiss. Thriftway contends that the trial court should have made findings of fact and conclusions of law, that its burden of proof has been met by the evidence, and that the trial court erred in dismissing its complaint. We agree.
There were no findings of fact or conclusions of law made by the trial court as is required by C.R.C.P. 52. The purpose of this rule is so that on appeal the appellate court may review the case and determine the correctness of the ruling made by the trial court. Twin Lakes Reservoir & Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793; Murray v. Rock, 147 Colo. 561, 364 P.2d 393; Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833. In the instant case, we are unable to determine from the record the basis for the trial court's decision.
However, the principal question raised is whether the testimony of the plaintiff's witness and the evidence consisting of the billings and statements would establish prima facie evidence of a claim for relief against this defendant.
C.R.S.1963, 154--1--3, provides:
'Book account, how identified.--When in any civil action, suit or proceeding, the claim or defense is founded on a book account, any party or interested person, association or company, may testify to his or their account book and the items therein contained; that the same is a book of original entries, and that the entries therein were made, by himself or his employee and are true and just; or that the same were made by a deceased person, or by a disinterested person, a nonresident of the state, at the time of the trial, and were made by such employee, deceased or nonresident person in the usual course of trade, and of his duty or employment to the party so testifying; and thereupon the said account book and entries shall be admitted as prima facie evidence in the case upon the matters as shown by said account book.'
In interpreting this section the court in White v. Hurlbut Grocery Co., 62 Colo. 483, 162 P. 1143, stated:
'It is true that the statute provides that the production of books of account establishes a presumption of the fact that the articles were sold by the plaintiff to the defendant, but the effect of this is to make a Prima facie case only, and upon which in the absence of contrary evidence, judgment may be rendered. In other words it then becomes the duty of the defendant to go forward with his testimony. But in no sense does such presumption cast the burden on the defendant to prove by a preponderance of the evidence that the goods were sold to another than the defendant. The burden to establish his case does not shift from the plaintiff to the defendant, but continues throughout the trial.'
The testimony of the witness and introduction of the two exhibits established a prima facie case for plaintiff.
There were introduced on cross-examination of the witness two checks, one drawn on 'L A D, Inc. dba Lad Thriftway,' 1280 S. .sheridan Blvd., Denver, Colorado, and a second check drawn on 'Lad Thriftway, Inc.,' 1280 S. Sheridan Blvd., Denver, Colorado. Both checks were signed by Louis Polidori. The bookkeeper testified that she received these checks and that they had been credited to the account. There were also received two exhibits, which were the envelopes in which the billings had been mailed. They were addressed 'L-A-D Thriftway, Inc.,' 1280 S. Sheridan, Denver, Colorado. Apparently, the trial court took the position that this evidence established prima facie that the articles had been sold to a corporation rather than to an individual and dismissed the plaintiff's case.
Lads Thriftway is a party defendant to this proceeding. The billings and delivery tickets were all addressed to Lad or Lad's T.W. and the billings all to L.A.D. Thriftway, all at 1280 South Sheridan. None were charged to a corporation, as such. The checks by which payment was made and the envelopes would not, in themselves, defeat plaintiff's prima facie case.
Since the trial court made no findings, we are unable to determine the basis for its decision in dismissing plaintiff's complaint. However, plaintiff by the introduction of the two billings and the delivery tickets established a prima facie case which it was then incumbent upon defendant to negative in order to prevail.
Judgment reversed and cause remanded with directions that a new trial be held on all issues.
DUFFORD, J., concurs.
PIERCE, J., dissents.
PIERCE, Judge (dissenting):
Thriftway's sole witness testified only to the fact that she handled milk and dairy products billings for Thriftway during the years in question, that she sent the bills to a 'Lads Thriftway' store, and that there were due and outstanding billings in the sum sued for. There was no testimony to the effect that these billings were actually delivery tickets and they were entered into evidence on a stipulation only as to their authenticity. Assuming the billings had been established as book accounts, they would not prove legal responsibility on the part of this individual defendant as these documents show only an itemization of the billing to Lads Thriftway at a certain address. They give no indication that there was any contract between this particular defendant and plaintiff or that there was any delivery or acceptance of the items by this defendant as an individual or by anyone in his behalf. There was no testimony to the effect that, in the normal course of business, these documents were prepared only after delivery or acceptance or that this particular defendant, who answered by general denial, was in any way personally connected with or responsible for the payment of this account. See Stathopulos v. Empire Meat Co., Colo., 476 P.2d 749.
While some books of account, if entered after proper foundation, could establish the presumption of the fact that articles were sold by a plaintiff to a particular defendant (See White v. Hurlbut Grocery Co., Supra, majority opinion), the documents in evidence here did not rise to that dignity and do not raise any presumption of a contract between plaintiff and this particular defendant. This failing is also true as to the checks which were purportedly issued to plaintiff by a corporation. See MacKay v. Lay, 28 Colo.App. 70, 470 P.2d 614; New England Electric Co. v. Shook, 27 Colo.App. 30, 145 P. 1002.
I believe this case is controlled by C.R.S.1963, 155--2--709, which states that an action for the price of goods sold and delivered may be maintained only where there has been acceptance of the goods by a buyer.
Giving the plaintiff the benefit of all doubt, the most that was proved in this action was that some billings were sent to a certain address and that no payments were ever received from this particular defendant. This evidence would not support a complaint for goods sold and delivered. Plaintiff's case is subject to all the infirmities alluded to by Chief Justice Hilliard and Justice Bock in the dissenting opinion in Rocky Mountain Beverage, Inc. v. Walter Brewing Co., 107 Colo. 63, 108 P.2d 885.
Upon review of the record in this action, I find no evidence from which the trial court could have based a judgment that the goods in question were either delivered to, or accepted by this defendant. I would rule that the trial court properly dismissed the action. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
Notwithstanding the trial court's failure to make findings of fact and conclusions of law, where Thriftway failed to prove its claims and could not recover as a matter of law, the granting of defendant's motion to dismiss without findings of fact and conclusions of law is not reversible error. Harris v. Pavlakis, 154 Colo. 570, 393 P.2d 735.
I would affirm the judgment.