279 P. 42 | Colo. | 1929
ACTION on a promissory note. In April, 1920, the defendant, The Bear Canon Coal Company, executed and delivered to the plaintiff Abercrombie its promissory note, which is in words and figures as follows, to-wit: "$500.00 Trinidad, Colorado, April 1st, 1920. One year after date we jointly and severally promise to pay to the order of J. J. J. Abercrombie Five Hundred and No/100 Dollars, at The International State Bank, Trinidad, Colorado, with interest at 6 per cent per annum from date until paid, with ten per cent additional on the amount unpaid as attorney's fees if this note is not paid at maturity, and is thereafter placed in the hands of an attorney for collection. * * * Value received. *171 This note is issued under special agreement with the company and limited thereby."
The complaint upon this instrument alleges that this note is not, and was not at the time of its issue, subject to any special agreement of the parties, or in any manner limited thereby, and that there was no agreement at the time of the issue of said note, or prior thereto, other than as shown on the note itself. The defendant filed a motion to strike from the complaint this allegation upon the ground that it purports to deny, and attempts to vary, the express terms of the written contract sued upon, and that such a paragraph is also an attempt on the part of the plaintiff to repudiate a portion of a written contract while relying upon the balance, and that the allegations are inconsistent, ambiguous and unintelligible and constitute an attempt to deny that the contract sued upon was subject to, or limited by, special agreement, and at the same time it purports to allege that there was no agreement at all at the time of the issue of the note, or prior thereto, other than as shown on the note itself, while the note itself specifically shows there was such an agreement which was incorporated in, and made an integral part of, the note by reference. The court sustained this motion and the plaintiff was given five days within which to plead. Thereafter within the specified time the defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, to which the plaintiff excepted and the latter was given time within which to elect whether to stand on his complaint, and he elected to stand upon it, whereupon the court entered judgment dismissing the action at plaintiff's costs. He is here with this writ of error.
[1, 2] The ruling on the defendant's motion to strike need not be considered, for we think the complaint was properly subject to the defendant's demurrer. The plaintiff does not cite a single case, or judicial authority *172 of any character, in support of his contention that the complaint states a cause of action. The reason is obvious because there are no adjudicated cases or judicial text books that, by any possibility of construction, could be considered as supporting his contention. As we read the plaintiff's argument it is an admission that a complaint to recover on a promissory note, which purports to be limited or qualified by some other agreement, must state the conditions of the limited agreement and that they have been complied with. There is no such statement in this complaint. The note as copied in the complaint specifically declares that the note is issued under special agreement and limited thereby. The language of this special agreement is not disclosed by the complaint, but the plaintiff himself asserts that the note is limited thereby.
[3, 4, 5] The third paragraph of the complaint that was stricken on the defendant's motion, was, in effect, an attempt by the plaintiff to deny that the note was limited by a special agreement. In Munro v. King,
[6] If a note is conditional, and certainly according to the allegations of the complaint this is a conditional note, no recovery can be had unless the condition has been performed or the performance waived. Sayre v.Leonard,
[7] A pleading in order to state a cause of action upon a conditional note must set out the condition and a compliance with it on the plaintiff's part or waiver by the defendant. 8 C. J., pp. 865, 866. Mulligan v. Smith,
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ADAMS and MR. JUSTICE ALTER concur.