Buell v. Burlingame

11 Colo. 164 | Colo. | 1887

Rising, C.

The first seven assignments of error relate to the sufficiency and relevancy of the evidence introduced by the plaintiff upon the question of the payment by him of the note to Young & Co., and these assignments may all be considered together, as they are based upon the rulings of the court in admitting proof of such payment, and in refusing to strike out such proof on motion. It being contended by the plaintiff in error that the testimony asked to be stricken out is immaterial, and not pertinent to the issues made, we will first ascertain what issues, relating to the fourth cause of action, are made by the pleadings. The material allegations of the complaint as to this cause of action are that on or about the 3d day of August, 1872, the defendant, for a valuable consideration, agreed with the plaintiff to pay a certain note made by the plaintiff and defendant to the order of Nathaniel Young & Co., on June 7, 1872, for $1,500, due ninety days after date, with interest at two per cent, per month until paid; that the defendant failed to pay said note, or any part thereof, except the sum of $600; that on or about the 15th day of December, 1875, he paid, for the use of the defendant, to the order of Nathaniel Young & Co., the sum of $1,963.50^011 account of the principal and interest due on said note. An examination of the answer will show that there is no issue raised upon any material fact alleged. The answer does not deny that defendant agreed to pay said note, but denies that she agreed to pay it to the plaintiff. This cannot be treated as a denial of the allegation. The answer does not deny that defendant failed to pay said note, but denies that plaintiff was forced or compelled to pay the same, as alleged in the complaint. We do not think the allegation in the complaint, that plaintiff was forced and compelled to pay said note, is a material allegation. The complaint stated a cause of action without this allegation. If, applying the law to the evidence, it appears that the plaintiff was authorized to make the payment when he did, that is all that is necessary to enable him to base his cause of action thereon. He was not required to wait until he was forced or compelled by legal proceedings to make such payment. The answer does not deny that plaintiff, on or about December 15, 1815, paid to the order of Nathaniel Young & Co. the sum of $1,963.50 for the use of defendant, but denies that such sum was so paid for the use and at the request of defendant. This amounts to an admission of the payment as alleged, but denies that such payment was made at the request qf the defendant.

The question -whether the fourth cause of action is barred by the statute of limitations may be treated under the eighth assignment of error. It is contended by counsel for plaintiff in error that the statute commenced to run from the time when the Young & Co. note became due and payable, and this contention is based upon the theory that, as the agreement between plaintiff and defendant as to the time when defendant was to pay the note is indefinite, it should be held that such payment was to be made upon the maturity of the note. We do not think the point made in the argument has any bearing upon the question in this case. The agreement between the plaintiff and defendant created new relations between them, and, as between them, the plaintiff became the surety of the defendant for the payment of the Young & Go. note. Smith v. Shelden, 35 Mich. 42-48; Colgrove v. Tallman, 67 N. Y. 95. A cause of action, by a surety against a principal, does not accrue until payment made by the surety. Ang. Lim. § 131, and cases cited; Brandt, Sur. § 1?6, and cases cited. The evidence shows that the action was not barred by the statute. It.is also urged that the judgment for $5,777.75 is for too large an amount, in that there should have been credited upon the notes mentioned in the first three causes of action the sum of thirty per cent, of the amount due thereon, being the sum realized from the assets assigned to Potter by defendant. The evidence shows that the sum which defendant in error was entitled to receive from the estate assigned to Potter, by the plaintiff in error, on account of said three notes, was, under the direction of defendant in error, applied on the Hahn, and Young & Go. notes, during the life of said notes, so that plaintiff in error had the full benefit of the amount so paid by her assignee; and not only so, but as to the amount of $600 paid on the Young & Go. note such payment stopped interest on that amount at two per cent, per month, when, if it had been credited on the notes held by defendant in error, it would have stopped interest at one per cent, per month. The plaintiff in error has not sustained any damage by reason of such application of the proceeds of the assigned estate. There is no merit in the point made by counsel for plaintiff in error, that two judgments were rendered in this case upon the same causes of action. The record shows but one entry relating to the default of the defendant, and that is an entry of judgment by default on the 13th day of January, 1S80. On the l?th day of January, 1880, a stipulation between the parties was filed, providing that the court might set aside the default theretofore entered in the case, and on the 19th day of January, 1880, on motion of the defendant, and in pursuance of said stipulation, it was ordered by the court “that the default heretofore entered herein against the said defendant be, and the same hereby is, vacated and set aside, and leave is granted the said defendant to answer the complaint herein forthwith.” The defendant answered, and went to trial, and judgment was rendered against her upon such trial. We have no doubt but that the judgment by default was set aside by the proceedings had, but, if it were not so, we should not reverse this judgment, or interfere with it in any way, on account of such prior judgment, but leave the party to such relief as the facts would entitle her to in a direct proceeding to avoid either of said judgments. To permit the plaintiff in error to raise any question based upon the action of the court in setting aside the default entered would, under the circumstances of this case, be wholly unwarranted.

The judgment should be affirmed.

De France and St allcup, 00., concur.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the district court is affirmed. Affirmed.