Freas v. Truitt

2 Colo. 489

• Court: Supreme Court of Colorado
• Decided: February 15, 1875
• Status: Published

Opinion

Wells, J.

The objection taken on the trial to the admission of testimony, as to the statement of account which was attached to the deposition of the witnesses sworn for the plaintiffs, was based in part upon an alleged variance between this statement and the bill of particulars filed with the plaintiffs’ declaration. But this latter paper is not incorporated into the bill of exceptions, and of itself is no part of the record. Cook v. Hughes, 1 Col. 51. We cannot, therefore, regard the alleged variance. The objection taken to the statement, as an aggregated and not an itemized account, is not well taken.

Mo evidence was given touching the drawing and acceptance of the bill of exchange mentioned in the first count of the declaration. The defendant’s plea goes to the whole declaration ; the allegation of the first count being, therefore, fully denied, and no evidence being produced by the plaintiffs to maintain the issues thus joined, it must be assumed that no such bill of exchange was ever made or accepted. What is said in argument as to the effect of the plaintiffs’ omission to prosecute the acceptor must be disregarded.

Mo error is perceived in the instructions given by the court, nor in refusing those prayed by the defendant.

The judgment is affirmed, with costs.

Affirmed.