14 Colo. App. 13 | Colo. Ct. App. | 1899
The right of the petitioners to demand payment of the dividends on the amount of their claim as filed against the assigned estates, must he measured by the terms of the written offer of the assignee and its acceptance by the petitioners. There is no other basis for the determination. The record contains no evidence which throws lawful light on the subject, save possibly what little may be found in the application of the assignee for permission to negotiate with the owners of the claim. This in no manner aids in the interpretation of the -written instruments. It enables us, however, to suggest a little more perspicuously the circumstances of the negotiations and what led up to the transaction. It is used only for that purpose and is in no manner a basis on which to rest our conclusion, nor does it in any wise affect the determination of the issue.
This is not a case which calls for the application of the rule ordinarily used in the computation of dividends for the purpose of distributing the assets of insolvent assigned estates where the claimant is the holder of collateral security. That rule was discussed in this court in Erle v. Sullivan, 8 Colo. App. 1, and in the supreme court in Erle v. Lane, 22 Colo. 278. It was wholly irrelevant except for the purposes of illustration. I thought then, as I think now, that the same rule ought to be applied, whether the estate is in the possession of an assignee by voluntary appointment or by legal succession. But such is not the law in Colorado. The opinion in the 22d Colorado seems to concede that in a case of voluntary assignment the authorities, at least the current and weight of them, hold the creditor may receive dividends on the amount of his claim as filed unaffected by his subsequent disposition of collaterals to the point of complete satisfaction. This doctrine is approved by this court as now constituted, notwithstanding the declarations of the principal opinion in Erie v. Sullivan. In this opinion we are supported by a late case in the supreme court of the United States, Merrill v. The
The parties complain very much in their petition and insist in their argument on the force of the circumstances surrounding the transaction. It is insisted the assignee stated to Hendrie Brothers & Bolthoff, if they failed to take this amount of money and surrender their note and stock, they would be held liable for the difference between the actual worth of the stock and what they were then offered for it, he insisting as a matter of law they would be liable for the difference. We do not see the force of these suggestions. It is an ancient maxim that ignorance of the law excuses no act, and we do not well see how a statement of what the law is, even when it is probably accurate as it was in this case, can be used as a lever to pry open a transaction which has been practically concluded between parties. We cannot concede the parties were misled by the statement, nor do we discover anything in what the assignee said which would not be regarded as sound legal advice if it had been offered by an indifferent party.
The judgment of the district court denying it will therefore be affirmed.
Affirmed.