C. H. Parker & Son Electrical Co. v. Prince, et al.

No. 10,876. C. H. Parker & Son Electrical Co. v. Prince, et al. Decided April 7, 1924. Rehearing Denied May 5, 1924. Action for the price of merchandise sold and delivered. Judgment for defendants. Reversed. On Application for Supersedeas. 1. Counterclaim — Evidence. In an action involving payment for goods sold under contract, cross-complaint for commissions, and a counterclaim for damages, it is held that all the claims should have been disposed of in the same action, and the exclusion of evidence on plaintiff’s counterclaim for damages, held reversible error. Error to the District Court of the City and County of-Denver, Hon. Julian H. Moore, Judge. Mr. M. H. Kennedy, for plaintiff in error. Mr. Guy D. Duncan, for defendants in error. Department One. [MAJORITY — Mr. Justice Burke] Mr. Justice Burke delivered the opinion of the court. These parties appear here in the same order as in the trial court and for' convenience we so designate them. Plaintiff and defendants entered into a contract whereby the latter agreed to sell, on commission, certain of the former’s pumping plants, furnaces, heating plants and water plants. By that contract defendants obtained the exclusive right to make such sales in the territory defined thereby and agreed to devote themselves exclusively thereto. Plaintiff brought this action for certain merchandise alleged to have been delivered to defendants under the contract and not accounted for. Defendants denied the allegations as to said merchandise and filed a cross-complaint for commissions claimed to be due and unpaid. Plaintiff counter-claimed for damages arising from defendants’ alleged violation of that portion of the contract concerning exclusive employment. Defendants denied the violation and damages. On the trial the court excluded evidence on plaintiff’s counter-claim. Judgment was for defendants and plaintiff brings error and asks that the writ be made a supersedeas. All these claims were founded upon contract. All related to the same subject and should have been disposed of in the same action. For the error of the trial court in excluding evidence of plaintiff’s counter-claim for damages the judgment is reversed and the cause remanded with leave to the parties to amend their pleadings as they may be advised, and for further proceedings in harmony herewith. Me. Chief Justice Teller and Me. Justice Allen concur.