13 Colo. App. 254 | Colo. Ct. App. | 1899
The plaintiff Barnum prosecutes an appeal from a judgment in favor .of the defendant. Tbe complaint stated an indebtedness from Green in tbe sum of $2,750 witb a partial payment of $200 on tbe 26tb of March, 1895. Tbe cause of action stated was on an assignment of an interest in a judg
The defendant attempted to plead an accord and satisfaction. At least there was an effort in that direction and some allegations to the point that when he paid Barnum $200 it was a full payment of the entire sum due under the assignment. The great trouble with this plea of accord and satisfaction is that, while he pleaded the payment, he neither pleaded an accord or an agreement between Barnum and himself that this sum was to be received in satisfaction, nor did he plead facts from which it could be inferred, nor did he offer any proof from which it could be found that the $200 was accepted by Barnum in satisfaction of his entire claim of $2,750. The requisites of a plea of accord and satisfaction under the code are tolerably well settled. At the common law an accord and satisfaction might be proven under the general issue. This is not true under our system, and the parties are bound not only to plead the facts by which the accord will be established, but they are bound also to plead its acceptance in satisfaction of the claim. It has always been the law that the payment of a part of a sum due is not to be
Under them and the evidence in the record it is very clear there was neither a plea of accord and satisfaction nor any evidence from which it could be rightfully concluded there was ever an accord or satisfaction of this debt. The point is open to the appellant. He did not demur, yet lie objected to the introduction of testimony whereby he saved the question.
It is quite clear that by the terms of the transfer of the interest in this judgment Bamum did not become a joint owner of it in the general sense, and the legal title to it was in no manner changed. 2 Black on Judgments, § 944; Hanks v. Harris, 29 Ark. 323.
It was a mode adopted by the parties to liquidate a debt which was due, and its legal effect created a security for the payment of the original obligation, and would have so stood if that judgment had not been released. The plaintiff, by virtue of the transfer, became entitled to share in the proceeds of the judgment, and whether or not he had a right to enforce the security or must have waited and looked to the liquidation of the judgment and its ultimate satisfaction is a question which 'is not presented. The situation was entirely changed by the plea of the defendant and the proof which he offered in support of his supposed defense. As we have already suggested, Green and the complainants in the Wood suit took mining property in payment of the whole judgment. Under this allegation it is quite evident the judgment in the suit of Wood et al. v. Wheeler et al. was
These authorities hold that wherever there is a contract by the terms of which a party is entitled to receive money only out of the proceeds of property, either from dividends from working it or from development or sale, if the defendant put it out of his power to carry out the contract and work the property and thereby realize the fund to which the promisee is to look and out of which his pay is to come, his claim ripens into a natural demand. Under this principle it does not lie with Mr. Green to say that by the terms of the transfer Barnum was bound to look to the property or to the dividends therefrom for the liquidation of the debt. By his own conveyance he rendered it impossible either to receive dividends or profits or money whereby Barnum’s claim could be satisfied. Having conveyed the property it follows that it could never become possible for a fund to be created for its pay
The court reached a different conclusion and on an erroneous hypothesis, and for this reason this judgment must be reversed and the cause remanded for a new trial in conformity with this opinion.
Reversed.