8 P.2d 767 | Colo. | 1932
DENVER Industrial Corporation, hereinafter referred to as plaintiff, sued the defendants August Kesselring and Katherine Kesselring upon their promissory note. The instrument was on the form known as a "cognovit," or "judgment note," containing a warrant of attorney to enter the makers' appearance and confess judgment. Pursuant thereto, plaintiff took judgment without service of process. Thereafter, the defendants appeared, filed an affidavit of a meritorious defense and had the judgment set aside. Leave was granted to defendants to plead, and they filed an answer and counterclaim. The cause was tried to a jury, which resulted in a money judgment in defendants' favor. Plaintiff brings the case to this court for review on writ of error.
The execution of the note was admitted, but defendants alleged fraud and declared that the controversy arose over certain shares of stock in the plaintiff corporation, sold by it to defendants; that plaintiff agreed to sell such shares at any time that the defendants should request them to do so; that defendants thereafter delivered the stock to plaintiff as security for a loan, and that the value of the stock exceeded the amount of defendants' note to plaintiff; that defendants requested plaintiff to sell such stock pursuant to agreement, but that plaintiff failed to comply with such request and fraudulently took judgment. These matters were set forth in defendants' affidavit of a meritorious defense and were more formally pleaded in their answer and cross-complaint. Plaintiff denies defendants' allegations of fraud and denies that it made any such agreement as alleged by defendants.
Numerous errors are assigned, but we shall consider only those argued in plaintiff's briefs, which we state in its own language, as follows:
"1. The motion to set aside the judgment entered on the confession note was erroneously sustained, the defendants failing to show in their motion or supporting *297 affidavits any defense whatever to the cause of action set up in plaintiff's complaint.
"2. The trial court committed reversible error in admitting in evidence parol testimony that varied the written contract of subscription.
"3. The trial court erred in denying the instructions requested by the plaintiff and in refusing to direct a verdict in favor of the plaintiff."
[1, 2] 1. The only argument made against the reopening of the judgment is that the affidavit of merits did not state a good defense, but plaintiff's promise to sell defendants' stock for them on request, and defendants' agreement to deliver it, created a valid contract, enforceable against either of the parties. A promise for a promise is a valid consideration. Gertner v. Limon Nat. Bank,
2. There was ample oral testimony to sustain the defense as set forth above, but counsel for plaintiff contend that such testimony was inadmissible as varying the terms of the promissory note and the subscription contract under which the corporate stock was sold. The subscription contract contains the following clause: "I understand that prospectus relating to said securities has been filed with the Secretary of State in accordance with the Securities Act, and that no salesman has any authority to make any promises or representations not contained in said prospectus, or any promise or agreements not contained in the stock certificate, or to alter or supplement the same, or to make any agreement to repurchase any of said stock, or to accept anything in payment thereof except check or draft * * *."
Plaintiff relies upon the above clause, but it does not *298
go to the question before us. This case does not involve an unauthorized oral promise of a salesman, attempting to vary the terms of a written instrument which contained the entire agreement, like that reported in Knight-CampbellMusic Co. v. Buck,
[3] 3. The instant case is controlled by Creek v.Lebo Investment Co.,
[4] 4. Counsel for plaintiff complain that the court refused every instruction that they tendered. The assignments of error are not argued with reference to any particular instruction, but only in the large. It is contended that they should have been given because they support plaintiff's theories as here advanced. The assignments pertain especially to plaintiff's objection to the setting aside of the original judgment; also to the parol evidence rule as adopted by the court, but we are in accord with the trial court, for the reasons that we have given. A directed verdict for the plaintiff would have been reversible error. Other legal questions, particularly those raised by plaintiff in error as to general rules about collateral security in the absence of stipulations or agreements, are inapplicable to present facts and therefore require no comment.
Finding no error in the record, the judgment is affirmed.
MR. JUSTICE CAMPBELL, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER concur. *300