45 Colo. 288 | Colo. | 1909
delivered the opinion of the court:
The district court of Boulder County rendered judgment in favor of S. T. Horn and against Hoover and Keables, the defendants, upon a certain promissory note executed by Hoover and Keables and one Gearhart, dated August 4,' 1904, and payablé two months after date, to the order of Horn. ' The judgment was rendered on the pleadings.
The defendants’ answer, aside from denials which were bad, one as being a negative pregnant,, and the other as stating a legal conclusion, shows ah attempt to plead two inconsistent defenses:''
First, that the plaintiff, Horn, had, at the time the note sued on became due, a valid chattel mort-' gage upon property of the said Gearhart, of the value of five or six hundred dollars, and that he made no attempt to realize on such property; and,
Second, that, for the purpose of inducing the defendants to sign the said note with Gearhart, the said Horn falsely and fraudulently pretended to them that he had a good and valid chattel'mortgage upon property of the said Gearhart, of the value of five or six hundred dollars; whereas, in truth and in fact, as the said Horn well knew, all the property originally'covered by the chattel mortgage had,' at that time, been removed from the county of Boulder by the said Gearhart, and sold and disposed of; that the defendants believed said representations to be true, and were induced thereby to sign the said note as sureties for the said Gearhart, in consideration of an extension of two months, by Horn to Gearhart, of the term of said chattel mortgage.
The rule adopted by this court with reference to judgment upon the pleadings is thus stated in the case of Mills et al. v. Hart, 24 Colo. 505, wherein
Upon a motion for judgment on the pleadings inconsistent defenses cannot be regarded as vitiating one another, but if any good defense is stated in the answer, it must be considered as true. The answer states that the owner of the note represented to these defendants that he held a chattel mortgage which was a first lien upon certain property of Gearhart, and that the property was of the value of five or six hundred dollars. The answer further alleges that they, believing these representations, agreed to become, and did become, .sureties upon the
The judgment will be reversed, and the cause remanded.
Reversed and remanded.
Rehearing denied.