Opinion
Oct. 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1185
Bohm, Connell & McLellan, Jerry C. Connell, Denver, for plaintiff-appellee.
Canges & Shaver, E. Michael Canges, Denver, for defendant-appellant.
RULAND, Judge.
Defendant (Don) appeals from a judgment for plaintiff (United Bank) allowing recovery of unpaid charges of $338.67 and interest on such charges of $350.32, incurred on a Master Charge credit card. We affirm in part and reverse in part.
Following presentation of United Bank's evidence on its claim in a trial to the court, Don moved to dismiss the complaint. The motion was denied, and Don elected not to present evidence in support of his defenses. The trial court then entered judgment for United Bank.
Don seeks reversal of the judgment, contending that United Bank failed to prove: (1) That Don signed the sales tickets charged to his card; (2) that Don received legal consideration for the sales tickets; and (3) that Don agreed to pay interest on any charges.
Don first challenges the use of photocopies of charge slips to establish that he signed the original charge slips; however, based upon requests for admissions and answers thereto from Don, the trial court found that:
'(Don) was a holder of a Master Charge credit card, that from time to time he utilized such credit card, that the signatures on the photographic reproductions of the sales tickets appear to be his . . ..'
Since answers to the requests for admissions have not been included as part of the record on appeal, we must assume that the trial court's interpretation of the answers was correct. See Howard v. Lester, 153 Colo. 199, 385 P.2d 121. Thus, the trial court thereby established the genuineness of Don's signature, and there was no prejudicial error in admitting the photocopies into evidence. Furthermore, the evidence supports the trial court's finding that Don received goods and services as represented by the sales tickets.
Don contends that interest should not have been charged to him at the annual rate of 18 percent on the delinquent charges because United Bank failed to prove the existence of any agreement to pay interest at that rate. We agree.
The trial court made no findings which disclose the basis upon which it concluded that United Bank was entitled to interest. The record reflects that customers using Master Charge credit cards customarily execute a 'card holder agreement' wherein the customer agrees to pay interest at an annual percentage rate of 18 percent on his average overdue balance. However, United Bank issued the card to Don pursuant to its policy of issuing cards to customers who maintained checking accounts at the Bank (and before the effective date of the Uniform Consumer Credit Code, 1971 Perm.Supp., C.R.S.1963, 73--1--101 et seq.). United Bank was unable to rpoduce any card holder agreement executed by or furnished to Don, and the record fails to support any inference that Don executed or was furnished such an agreement.
United Bank contends that by using the credit card and making some payments on the charges incurred, Don impliedly agreed to the 18 percent interest rate and is now estopped to deny liability therefor. This contention is without merit. While an obligation to pay interest in some cases may be based on an implied contract (evidenced by the obligor's payment of such interest over a period of months), it must appear that the obligor knowingly paid such interest. See, e.g., Plummer v. Struby-Estabrooke Mercantile Co., 23 Colo. 190, 47 P. 294. There is no evidence in the record to support that conclusion here.
The only reference to the 18 percent annual rate appearing in the evidence is contained on the monthly statements. However, the only witness called by United Bank was its employee who testified that a separate corporation was engaged by United Bank to compute and mail monthly statements of account by computer to its Master Charge customers. This witness was not a director, officer, or employee of the second corporation, and did not control, supervise, or direct the operation of the computer or the mail service. In addition, this witness was not employed at United Bank until sometime after the credit card was issued to Don. To support the presumption of mailing based on the business custom of a corporation, at the least, there must be testimony from a witness who has direct, personal knowledge that the mailings in question were handled in the usual course of business. See 1 J. Wigmore, Evidence s 95 (3rd ed.). Hence, there was insufficient evidence to establish that monthly statements were mailed to Don by the second corporation, and thus there is no evidence to support the existence of an implied contract to pay 18 percent interest.
The judgment is affirmed as to United Bank's claim for the unpaid charges of $338.67, and the judgment is reversed as to the amount of interest awarded. The cause is remanded with directions to assess interest on the unpaid charges pursuant to C.R.S.1963, 73--1--2.
VAN CISE and STERNBERG, JJ., concur.