CARTER v. PIGG, 146 Colo. 306 (1961)

(361 P.2d 437)

WALTER CARTER v. MARVIN H. PIGG, D/B/A PIKES PEAK HEARING CENTER.

No. 19,287.Supreme Court of Colorado.
Decided April 24, 1961.

Action for refund of money paid for hearing aid. Judgment for defendant.

Affirmed.

1. APPEAL AND ERROR — Trial — Evidence — Findings. Where no question of law were involved, the controversy being entirely factual, findings of the trial court supported by the evidence will not be disturbed.

Error to the District Court of Rio Grande County, Hon. Robert R. Tarbell, Judge.

Mr. GAIL F. OUREN, for plaintiff in error.

Mr. GORDON H. ROWE, JR., for defendant in error.

In Department.

Opinion by MR. JUSTICE DAY.

THIS writ of error to the judgment of non-suit entered in the trial court against the plaintiff in error, plaintiff below, involves an action for a refund of $250.00 paid by plaintiff for a hearing aid purchased from the defendant. The plaintiff deemed it unsatisfactory, returned it, and asked for a refund of the purchase price. On being refused, he brought suit in the county court, which resulted in an unfavorable verdict. He appealed to the district court, which determined also that he was not entitled to recover.

Page 307

[1] There are no questions of law involved. The controversy, being entirely factual, presented the question whether the hearing aid was as represented. the trial court heard the evidence, whereby it was shown repeated attempts — to the number of six — were made by the defendants to satisfy the plaintiff. the court specifically found: (1) the evidence did not indicate that the hearing aid failed to function; (2) there was no breach of “any implied warranty.” and (3) Carter’s failure to cooperate in the adjustment of the hearing aid was responsible for its failure to give him satisfaction.

These findings are amply supported by the evidence, and will not be disturbed on review. The judgment is affirmed.

MR. JUSTICE MOORE and MR. JUSTICE FRANTZ concur.