12 Colo. App. 377 | Colo. Ct. App. | 1898
This judgment which rests on the findings of the court which are amply supported by competent testimony, is assailed on various grounds. None of the positions taken by counsel appear to be tenable. We will first state the issue as formed
Tritch brought suit against Byers, Gutsch and Briggs, stating in his complaint that the Denver Hardware Company, a Colorado corporation, on the 15th of April, 1895, made its promissory note, payable ninety days after date for value, to the order of Tritch, at their office, with interest at twelve per cent after maturity. It was further averred that Byers, Gutsch and Briggs signed their names on the back of the instrument before delivery, and then stated the legal conclusion that they thereby became the joint makers of the note. It was further.stated that nothing had been paid on the note which was long past due and the property of the plaintiff. The plaintiff for some reason which is not plain to be seen, stated that the hardware company had made an assignment of all of its property for the benefit of creditors and that the assignee had given bonds, qualified and entered on the discharge of his duties. It was averred that plaintiff had presented his claim to the assignee for allowance, but that nothing had been paid, but that he did not intend thereby to waive any rights. The complaint was verified and the defendants answered, putting their defense into three separate paragraphs. The first denied that the defendants were liable jointly as maker or makers of the note. The second set up that the plaintiff ought not to have his action because the note had been delivered to the plaintiff before their indorsement and that no consideration passed to any of them. The third defense set up the assignment of the hardware company and the proof of the plaintiff’s claim before the assignee which was averred to be an election which concluded him. There, was a replication which as to the first defense was that it did not state facts sufficient to constitute any defense; as to the second, a denial of all the allegations, and as to the third, a denial of the election coupled with a statement that the alleged defense did not state facts sufficient to constitute a defense. The case was set for trial on the plaintiff’s motion. The issue was
Although it is suggested by the defendants’ counsel that he is unadvised that the question has been settled by the appellate courts, it has been our opinion ever since the case of Martin v. Good was decided by the supreme court of the territory in 1873, and affirmed by the supreme court of the United States in 1877 that the liability and status of strangers to negotiable paper who put their names on the back of it prior to its delivery to the payee, or to a bona fide holder, was not an open question. As we understand it that case decides that thereby they in law assume the position of joint makers subject to all the responsibilities attaching to that position, and under the code may be sued either jointly or severally with the comaker. Good, v. Martin, 2 Colo. 218; Good v. Martin, 95 U. S. 90.
We are not unmindful of the fact that the appellants’ counsel with some vigor attack the evidence by which this matter of fact is sustained. We might very easily shelter ourselves behind the very general rule which prevails where the trial judge hears the testimony and determines the facts, but we have read the evidence with considerable care and we see no escape from the conclusion that this note bearing the indorsements of the defendants and appellees was thus executed by all of them prior to the time it was completed and delivered to Tritch. The company wanted money. The note without the name of the payee was evidently prepared and placed in the hands of one Burdette, and possibly, originally, a note payable to his order was prepared and delivered to him to raise money on. It is one of the things known sometimes as a “kiting note” and sometimes as a note made for the purpose of sale. However this may be, the note in
The statements of Burdette, the broker, were excluded and error is assigned on the ruling. We are unable to see that this was error or that the case ought to be reversed because of it. We are entirely satisfied that neither Burdette nor Berlin was a broker in the sense in which that term is used in the authorities cited. It is unnecessary to discuss the question, or to determine whereon and how far the statements of a broker are admissible against either party or in favor of
The only other proposition to which we need address our attention respects the alleged alteration of the note. The paper was filed in the court with the bill of exceptions and subject to our inspection. We have examined it and it is plain that as originally written the note bore date of the 11th, but as altered it bore date of the 15th. The appellants thereupon complained that it was incumbent on the plaintiff, before he was entitled to recover, to explain the alteration, and possibly, to show that it was done prior to the time it came into his possession and before it had left the control of the defendants. We are cited to many cases which hold that alterations of this description are material and the burden of the
We prefer to put our decision on what seems to us very plain grounds which relieves us of the necessity to examine these authorities and to express our views respecting the law. We are unable to apprehend that there is any room for the application of the doctrine of presumption, and believe that it is so clearly shown by the proof that the alteration was made prior to the time it was delivered to Tritch that there was a sufficient explanation of the alteration to permit the evidence to go to the court or to the jury without more. As we understand it, when the plaintiff makes an explanation the law is that it then becomes a question of fact for the jury to determine when the alteration was made and by whom and if the plaintiff shall recover. The complaint charged that the note was made by the hardware company on the 15th day of April and bore that date. A copy of it was set up in the complaint which was verified. This under our system proved the note as set out unless its execution should be denied by the answer. The execution of the note by the failure to deny this allegation was thus admitted. This of itself ought to remove any presumption and furnish sufficient basis for the paper to go to the jury or the court. It was supplemented by the positive testimony of Berlin that Tritch’s name was in it as payee, the date was on it, and that it was in exactly the condition in which it was presented to the court except as to the bank stamp. This certainly would make a case for
We are unable to discover any error in the record. The judgment will accordingly be affirmed.
Affirmed.