Volume 166 — Colorado Reports

1. <bold>SET-OFF AND COUNTERCLAIM</bold> — <italic>Fraud — Wages — Compulsory — Failure to</italic><italic>Assert — Dismissal — Summary Judgment — Rules.</italic> Where prior to commencement of action in fraud here reviewed, defendant brought action for wages under contract of employment which was settled and dismissed with prejudice, and where defendant filed motion for summary judgment on ground that claim made in fraud case was compulsory counterclaim under R.C.P. Colo. 13(a) which should have been raised in wage case and is now therefore barred, <italic>held</italic>, trial court ruled correctly in granting defendant's motion for summary judgment, as claim in fraud case comes under category of compulsory counterclaim in wage case and should have been raised in that case. 2. <italic>Compulsory — Same Events — Prior Claim — Evidence — Proof —</italic><italic>Different.</italic> A counterclaim may be compulsory where it arises from the same events as does the prior claim, even though the evidence needed to<page_number>Page 23</page_number> establish the opposing claims may be quite different. 3. <italic>Claim — Opposing Party — Logically Related — Exceptions — Rule —</italic><italic>Negative — Compulsory.</italic> Any claim that a party might have against an opposing party, which is logically related to the claim brought by the opposing party and which is not within the exceptions stated in the pertinent rule, is a compulsory counterclaim. 4. <italic>Wage Claim — Prior Suit — Fraud Claim — Subsequent Suit — Same</italic><italic>Transaction — Compulsory Counterclaim.</italic> Where wage claim by defendant against plaintiffs in prior suit and fraud claim by plaintiffs against defendant in subsequent suit arose out of the same transaction, <italic>i.e.</italic>, the contract of employment, <italic>held</italic>, under such circumstances, each is a compulsory counterclaim to the other.

1. <bold>RECORDS</bold> — <italic>Donee — Real Property — Recordation — Deed — Protection —</italic><italic>Conveyancing and Recording Act.</italic> A donee of real property who has duly recorded the instrument of conveyance is entitled to the protection of the provisions of C.R.S. 1963, 118-6-9 of the Colorado Conveyancing and Recording Act. 2. <italic>Race-Notice Statute — Priority — Second Grantee — Without Notice —</italic><italic>Prior Recordation.</italic> C.R.S. 1963, 118-6-9 has been aptly labeled as a "race-notice statute," which, in effect, grants priority to a second grantee only if he takes the instrument without notice of the prior conveyance and gets his instrument recorded ahead of the prior instrument.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Burglary — Adequacy.</italic> In prosecution for the crime of burglary, reviewing court is of the view that the information adequately informs defendants that they are charged with the crime of burglary. 2. <bold>BURGLARY</bold> — <italic>Charge — Breaking and Entering — Intent to Commit — Larceny.</italic> The charge of breaking and entering a store building with intent to commit larceny therein constitutes the charge of burglary and not of larceny.<page_number>Page 410</page_number> 3. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Name of Crime — Mention — Negative —</italic><italic>Description.</italic> The name of the crime need not be mentioned in an information, if the crime is adequately described therein. 4. <italic>Burglary — Language — Clear — Proper.</italic> The language of the information in the instant case adheres to the approved requirements of properly charging a crime and apprises the defendants clearly and properly that they were charged with the crime of burglary. 5. <italic>Sufficient — Charge — Defense.</italic> An information is sufficient if it advises a defendant of the charge he is facing so that he can adequately defend against it. 6. <italic>Sufficient — Charge — Language of Statute.</italic> An information is sufficient if the charge is in the language of the statute. 7. <italic>Wording of Statute — Exact — Negative.</italic> An information need not follow the exact wording of the statute. 8. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Accomplice or Accessory — Applicable —</italic><italic>Record — Trial Court — Propriety.</italic> An accomplice or accessory instruction is applicable and proper where the evidence indicates that one of the defendants was standing by and was aiding, abetting or assisting in the perpetration of the crime; and record shows rather convincingly, under circumstances of instant case, that trial court acted properly in giving instruction on law concerning accomplice. 9. <italic>Special — Emphasized — Particular Portions — Singled Out —</italic><italic>Impropriety.</italic> Particular portions of evidence should not be singled out and emphasized by special instructions. 10. <italic>Special — Flight — Unfair — Error.</italic> Where evidence does not warrant it, special instruction with respect to flight is unfair and a basis for reversible error. 11. <italic>Flight — Avoidance — Detection — Arrest — Propriety.</italic> Where there is evidence of flight as a deliberate attempt to avoid detection and arrest, a flight instruction is proper. 12. <italic>Flight — Propriety.</italic> In prosecution for burglary, record reflects that trial court acted properly in giving particular instruction dealing with flight. 13. <bold>CRIMINAL LAW</bold> — <italic>Defenses — Insanity — Other Pleas — Liberal Construction</italic><italic>— Statute.</italic> C.R.S. 1963, 39-8-1, which provides that if one of the defenses of defendant is insanity it must be pleaded at the same time with other pleas, is construed liberally in favor of defendant.<page_number>Page 411</page_number> 14. <italic>Changes of Plea — Additions — Fair and Just Determination —</italic><italic>Charges.</italic> Where good cause is shown, it is incumbent on the trial court to allow changes of plea or additional pleas to accomplish the fair and just determination of criminal charges. 15. <italic>Changes of Plea — Additional Pleas — Discretion of Court — Lack of</italic><italic>Abuse — Review — Undisturbed.</italic> Whether good cause is shown regarding changes of plea or additional pleas rests within the sound discretion of the trial court; and in the absence of a showing of an abuse of discretion by the trial court, reviewing court will not disturb its ruling. 16. <bold>BURGLARY</bold> — <italic>Additional Plea — Not Guilty by Reason of Insanity —</italic><italic>Denial — Lack of Good Cause.</italic> In prosecution for burglary, where defendant sought to enter additional plea of not guilty by reason of insanity some five weeks after he had pled not guilty, and no reason or cause was shown to court as to why he sought to add this plea, <italic>held</italic>, under the circumstances, trial court did not abuse its discretion in denying defendant's motion to add insanity plea since the only logical answer for not presenting some grounds in support of the motion to add the insanity plea is that no "good cause" existed. 17. <italic>Arrest — Roof — Store — Others — Guilt — Determination — Jury.</italic> In prosecution for burglary, question as to whether defendant arrested on roof of building containing store in which other defendants were arrested was guilty of burglary was one for jury determination. 18. <bold>CRIMINAL LAW</bold> — <italic>Amendment of Mittimus — Conform to Record — Propriety —</italic><italic>Prejudice — Negative.</italic> In prosecution for burglary, trial court's amendment of the mittimus to conform to the record did not constitute a prejudicial error under the facts as shown in the record; it did not change the date of the commencement of the sentence of either defendant in any way, hence, the defendants were not prejudiced.

1. <bold>JUDGMENT</bold> — <italic>Default — Motion to Vacate — Discretion of Court — Appeal</italic><italic>and Error.</italic> A motion to vacate and set aside a default judgment is addressed to the sound discretion of the trial court, and such order will not be disturbed unless it clearly appears that there was an abuse of discretion.<page_number>Page 472</page_number> 2. <italic>Default — Vacating — Court — Discretion — Abuse — Appeal and Error.</italic> A trial court has wide discretion with relation to vacating and setting aside a default judgment; hence, unless the record reflects a clear abuse of discretion, reviewing court will not interfere with a ruling setting aside a default. 3. <bold>APPEAL AND ERROR</bold> — <italic>Ruling — Trial Court — Presumption of Regularity —</italic><italic>Default Judgment — Setting Aside — Abuse of Discretion.</italic> There is a presumption of regularity applicable to trial court rulings, and without a clear portrayal of an abuse of discretion, reviewing court will not reverse the trial court's ruling setting aside a default judgment. 4. <bold>JUDGMENT</bold> — <italic>Summary — Denial — Contract — Breach — Loan Company — Bank</italic><italic>— President.</italic> In action by loan company against bank and its president for damages for breach of contract in connection with bank's refusal to purchase notes from plaintiff in accordance with financing arrangement previously entered into, reviewing court is of the view — based upon previous case holding regarding summary judgments and in light of various defenses in defendants' answer which raise genuine issues of material fact — — that trial court was correct in denying plaintiff's motion for summary judgment against defendants. 5. <bold>TORTS</bold> — <italic>Inducing Breach of Contract — President — Wilful — Failure to</italic><italic>Establish Elements.</italic> In action by loan company against bank president for damages for wilfully and maliciously inducing breach of contract, reviewing court is of the view that the evidence was insufficient in showing malice or wilfulness on part of defendant bank president, and was otherwise deficient in establishing the material elements of the claims; hence, trial court did not err in dismissing claims against defendant bank president. 6. <bold>APPEAL AND ERROR</bold> — <italic>Disputed Facts — Finding — Trial Court —</italic><italic>Substitution — Review — Negative.</italic> Reviewing court will not substitute its own opinion or findings of fact when an issue has been resolved by the trial court on disputed facts. 7. <bold>DAMAGES</bold> — <italic>Breach of Contract — Loan Company — Bank — Offer to</italic><italic>Purchase — Notes — Claim — Dismissal — Insufficient Evidence.</italic> In action by loan company against bank for breach of contract, claim for damages predicated upon revocation by bank of its alleged continuing offer to purchase notes from company was properly dismissed by trial court on the basis of insufficient evidence. 8. <bold>JUDGMENT</bold> — <italic>Claim — Loan Company — Bank — Breach of Contract — Reserve</italic><page_number>Page 473</page_number><italic>Account — Record — Failure of Support — Reversal.</italic> In action by loan company against bank for damages for breach of contract coupled with claim for full amount of reserve account or any part thereof which company contends it is entitled to as a result of the transactions which were consummated between the parties in accordance with plan specified in letter, reviewing court is of the view that judgment in favor of company on this claim cannot be supported by the record and therefore must be reversed. 9. <bold>TRIAL</bold> — <italic>Findings of Fact — Response — Issues — Outside — Lack of</italic><italic>Support — Judgment — Negative.</italic> Findings of fact by the court should respond to and be within the issues, and a finding outside the issues cannot be supported, and cannot be used to formulate a judgment. 10. <bold>REFERENCE</bold> — <italic>Accountant — Master — Audit — Reserve Account — Finding —</italic><italic>Negligent Collection — Lack of Hearing — Adoption — Error.</italic> Where trial court ordered accountant to act as master in order to perform limited function of auditing "reserve account" of plaintiff loan company in defendant bank, <italic>held</italic>, even if court-appointed accountant — who held no hearing — had made finding of negligent collection by defendant bank, it would have been error for court to adopt such finding. 11. <bold>BANKS AND BANKING</bold> — <italic>Breach of Contract — Loan Company — Finding —</italic><italic>Negligent Collection — Lack of Competent Evidence — Measure of Damages.</italic> In action by loan company against bank for damages for breach of contract arising out of financing arrangement, finding by trial court of specific sum as damages on issue of negligent collection by bank is untenable, since there was no competent evidence whatsoever before trial court to support the measure of damages it adopted. 12. <bold>INTEREST</bold> — <italic>Damages — Negligent Collection — Bank — Unliquidated —</italic><italic>Statute — Inapplicable.</italic> Where claim for damages because of negligent collection procedures by defendant bank had never been settled, the claim was unliquidated, hence, the statute which allowed 6% interest on certain liquidated claims and for money due and owing was not applicable. 13. <bold>APPEAL AND ERROR</bold> — <italic>Breach of Contract — Finding — Accountant — Stated</italic><italic>Sum — Interest Arrangement — Lack of Evidence.</italic> In action by loan company against bank for damages for breach of contract arising out of financing arrangement, trial court erred in adopting finding of court-appointed accountant that stated sum was a proper interest charge against the reserve<page_number>Page 474</page_number> account, since there is no evidence revealing what the interest arrangement was between the bank and the loan company.

1. <bold>CONSPIRACY</bold> — <italic>Elements.</italic> The elements necessary to to constitute the crime of conspiracy are as follows: (1) there must be a combination of two or more persons: (2) there must be the existence of an unlawful purpose to be accomplished which must amount to a crime; (3) there must be a real agreement, combination, or confederation with a common design; and mere passive cognizance of the crime to be committed or mere negative acquiescence is not sufficient. 2. <italic>Direct Testimony — Agreement — Unnecessary — Jury — Inference —</italic><italic>Sufficient.</italic> Direct testimony to establish a specific agreement is unnecessary to prove the crime of conspiracy; it is sufficient if there is evidence in the record from which the jury can infer such an agreement or meeting of the minds. 3. <italic>Conviction — Other — Failure to Try — Crime — Same.</italic> A person can be convicted of conspiracy even though another is not tried for the same crime. 4. <bold>CRIMINAL LAW</bold> — <italic>Argument — Trial — Motion for New Trial — Failure to</italic><italic>Raise — Review — Denial.</italic> An argument not raised by defendant at the trial and not presented by him in his motion for a new trial will not be considered by the Supreme Court on review.

1. <bold>INSURANCE</bold> — <italic>Double or Concurrent — Two Policies — Duplication</italic><italic>Coverage — Contribution — Same Interest — Same Parties — Same Risk.</italic> Where there is so-called double or concurrent insurance, with two or more policies providing the same or duplicating coverage, the right of contribution has been held to exist between such insurers; however, such contribution between two insurers cannot be enforced "unless the policies cover the same interest in the same property in favor of the same parties against the same casualty or risk." 2. <italic>Contribution — Co-Insurers — Equity — Payment — Whole Loss —</italic><italic>Reimbursement.</italic> Contribution is a principle sanctioned in equity, and arises between co-insurors only, permitting one who has paid the whole loss to obtain reimbursement from other insurers who are also liable therefor. 3. <italic>Double or Concurrent — Contribution — Insurers — Unenforceable —</italic><italic>Lack of Identity — Parties — Insurable Interests.</italic> In action by second insurer against first insurer seeking contribution based on alleged so-called double or concurrent insurance, facts indicate that instant situation is not a true case of double insurance because of obvious lack of identity of parties to the insurance policies, as well as a lack of identity as to the insurable interests of each party; hence, the right of contribution cannot be enforced. 4. <italic>Double or Concurrent — Same Mortgagee — Identity of Interest —</italic><italic>Negative — Contribution — Unenforceable.</italic> In action by second insurer against first insurer seeking contribution based on so-called double or<page_number>Page 514</page_number> concurrent insurance, contention of second insurer — that instant situation involves a case of double insurance warranting contribution because the same mortgagee is named in each of the two insurance policies — is without merit, since this is not sufficient identity of interest between the policies issued by both insurers to warrant contribution.