PEOPLE v. LINDSEY, 97 Colo. 599 (1935)

52 P.2d 396

LEEMAN AUTO COMPANY v. SWAYNE-WIMBUSH MOTOR COMPANY.

No. 13,629.Supreme Court of Colorado.
Decided November 25, 1935.

Action for accounting for proceeds of sale under a chattel mortgage and for damages for selling for insufficient price. Judgment for plaintiff.

Affirmed.

1. APPEAL AND ERROR — Sufficiency of Evidence. A jury verdict which is supported by the evidence will not be disturbed on review in the absence of a showing of prejudicial error.

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2. Instructions — Abstract. Error assigned to the giving of instructions will not be considered on review where such instructions are not inserted in the abstract.

Error to the District Court of the City and County of Denver, Hon. John C. Young, Judge.

Mr. JACKSON M. SEAWELL, for plaintiff in error.

Mr. LOUIS G. ISAACSON, for defendant in error.In Department.

MR. JUSTICE CAMPBELL delivered the opinion of the court.

THE plaintiff below, the Swayne-Wimbush Motor Company, defendant in error, is the owner of a Ford motor car on which the defendant Leeman Auto Company, plaintiff in error, has a chattel mortgage. The complaint alleges that during the lien of this mortgage the defendant Leeman Company, mortgagee, wrongfully took this car from the possession of plaintiff mortgagor and disposed of it by sale and refused to account to the plaintiff Swayne Company for the proceeds of the sale, which the latter seeks to recover in this action. Plaintiff Swayne Company, mortgagor, makes the further charge in its complaint that in selling this car the defendant Leeman Company failed to use necessary care and diligence to secure a reasonable price therefor to the plaintiff’s further damage in the sum of $196, for which judgment herein is also demanded. In its answer to the complaint the defendant Leeman Company admits that it had a chattel mortgage on this car securing to the defendant thereby a balance due it from the plaintiff Swayne Company, and denies all other allegations of the complaint.

[1] Each of the parties to the action introduced

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evidence at the trial upon the issues of fact above outlined. The court gave its instructions to the jury which returned a verdict against the defendant Leeman Company in plaintiff Swayne Company’s favor for $185. The evidence sustains the verdict.

[2] Plaintiff in error urges objections to certain instructions, but as the instructions were not inserted in the abstract, it is not entitled to a ruling thereon.

Judgment affirmed.

MR. CHIEF JUSTICE BUTLER and MR. JUSTICE HILLIARD concur.

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