Kinsel v. Wieland

38 Colo. 296 | Colo. | 1906

Mr. Justice Campbell

delivered the opinion of the court:

Action by plaintiff Kinsel, payee of a promissory note, against defendant Wieland, as co-maker, he having, as it is alleged, indorsed the same in blank before delivery. The noté was executed in 1897, and signed by John A. Jackson as maker, payable to the order of plaintiff Kinsel.

To the complaint stating the foregoing facts, there was an answer containing two defenses: First, a denial that defendant indorsed the note before maturity, but, on the contrary, the same was indorsed by defendant after its execution and delivery and on the day of its maturity, and at the solicitation of the plaintiff, for his accommodation, and without any consideration, and with the express agreement that defendant should' not be held liable for its payment in any manner; Second, the defense of payment. The replication put in issue the new matter. There was a judgment for defendant, and plaintiff has sued out this writ of error. There is no appearance here for defendant in error.

The abstract is insufficient and meager, and, under the established practice of this court, plaintiff in error may not press for consideration the assigned errors. It need hardly be said that, at the request of an appellant or plaintiff in error, we are not required in our investigations -to look beyond the printed abstract of record. The abstract before us does not purport to contain all the evidence in narrative form; neither does it state that the bill of exceptions contains all the evidence produced at the trial. The ease was tried before a jury, and there were no objections to the instructions. We are not advised upon what theory the case was submitted, or what instructions in fact were given to the jury. We may assume, therefore, that the case was properly submitted upon both defenses under pertinent evidence and with appropriate instructions.

But the principal objection here urged to the judgment — that the court permitted the defendant by parol testimony to contradict the legal effect of his blank indorsement — cannot be intelligently inquired into. Counsel rely upon Dunn v. Ghost, 5 Colo. 134; Martin v. Cole, 3 Colo. 113 (which was affirmed in 104 U. S. 30), and Tabor v. Miles, 5 Colo. App. 127, and kindred cases, for the proposition that the terms of a contract of indorsement or signature on a promissory note cannot be contradicted by parol evidence.

From the evidence which is summarized in the abstract, it would appear that the defendant was permitted to explain the circumstances of his indorsement and the restrictive nature of the same. Whether this evidence was oral or written, the abstract does not sufficiently or definitely disclose. For aught that appears, it may be that defendant introduced as a part of the contract of indorsement written evidence which, in connection with the indorsement, constituted a valid contract between him and the payee. It will be observed that this action is one by the payee of the note against an indorser apparently not otherwise connected as a party thereto. The complaint says the indorsement was made before delivery of the note to the plaintiff; the answer, that it was made afterwards, and for a specific purpose, and for the accommodation of the payee.

The plaintiff in error or appellant must affirmatively show error in order to secure a reversal of a judgment of which he complains. In affirming the judgment, as already stated, we are at liberty to presume that there was evidence tending to establish the defenses pleaded, and that a proper submission was made to the jury. In Fish v. Reser, 19 Colo. 88, this court cited with approval Rey v. Simpson, 22 How. (U. S.) 341, to the point that parol proof is admissible to show the circumstances in which perr sons other than the payee, and apparently not connected with a promissory note, had indorsed the same. The case in hand, under the evidence and instructions of the court, may have been brought within this doctrine, and the printed abstract does not affirmatively show that it was not. In view of the fact that there is no appearance for defendant in error, and that we are not required to search the transcript for reasons to reverse the judgment, we make the additional observation that we cannot assume the correctness of the statement of a case made by .a plaintiff in error or appellant in his brief unless the same is founded upon the printed abstract. For the foregoing reasons, also, other objections urged by plaintiff in error, some of which are to the rulings of the court in admitting and rejecting evidence, cannot be inquired into, particularly since the abstract does not sufficiently disclose their nature, or the evidence to which they apply.

No prejudicial error having been affirmatively shown, the judgment must be affirmed. Affirmed.

Chief Justice Gabbert and Mr. Justice Steele concur. _