26 Colo. App. 286 | Colo. Ct. App. | 1914
The court erred in sustaining the attachment. The first section of the attachment act (Sec. 91, Mills’ Ann. Code) specifically provides that an attachment may issue in “an action on contract express or implied.” Sec. 92 provides that the affidavit in attachment must state that the defendant is indebted to the plaintiff. These provisions have been strictly construed. Goss v. Bd. of Co. Comrs., 4 Colo. 468; Mentzer v. Ellison, 7 Colo. App. 315. This'action is not on a contract', or an indebtedness. The complaint states that defendant Dygert, as agent of defendant Cockran, by fraudulent representations that one Glasgow would be one of the purchasers of a certain horse and would sign the three notes aforesaid, and that the notes would be returned and destroyed if he did not, induced the plaintiffs and Swisher (who was made a defendant because he would not join in the suit) to sign the notes and deliver them without Glasgow’s signature; that before the horse was delivered the plaintiffs ascertained that Glasgow had not taken any interest in the horse or signed the notes; that plaintiffs fear the defendants Dygert and Cockran will negotiate the notes; that they refused to* perform the contract on their part to “the very great damage of these plaintiffs.” The prayer was for an injunction restraining the defendants from disposing of or making use of said notes; that they be delivered up and cancelled; that in case they were not delivered up, that judgment be rendered for the amount of said notes and interest.
These averments constitute the basis of a suit in equity to restrain the negotiation and require the cancellation of the notes. The remedy by attachment is a special remedy at law,
The foregoing disposition of the attachment shows that the judgment for $2,100 was erroneous. If there was no- indebtedness due from defendants to the plaintiffs, and no damages. accrued, a judgment for the same cannot -stand, even if the notes were not delivered up for cancellation.
Now, as to that part of the judgment ordering the notes to- be delivered up for cancellation. No evidence was introduced, and, on the general demurrer, the complaint must be taken for all that may be reasonably inferred from matters well pleaded therein. — Supply Ditch Co. v. Elliott, 10 Colo. 327, 15 Pac. 691, 3 Am. St. 586; Marix v. Stevens, 10 Colo. 261, 15 Pac. 350. And in Logan v. Clough, 2 Colo: 323, 327, it is said “that a demurrer cannot be-sustained if any proof, properly called for by, and properly founded upon, the allegation in the bill, can make the case a proper subject for equitable jurisdiction,” citing Bleeker v. Bingham, 3 Paige 84; Francis v. Wells, 2 Colo. 660, 669. The purport of the complaint is to charge that the three notes were delivered with the understanding that they were to- be void and of no effect if Glasgow did not sign them and thus take an interest in the horse. Promissory notes, signed and delivered under an express agreement and condition that they are not to be
The judgment of the lower court is, therefore, affirmed as to that part of it ordering the notes to be immediately delivered up, and reversed as to- that part of it sustaining the attachment and giving judgment for $2,100, with costs of both courts to be paid by the plaintiffs in error.