9 Colo. 608 | Colo. | 1886
The Bank of Idaho Springs was not a corporation. It was simply a partnership, composed of several individuals who contributed their money or labor to the enterprise. Plaintiff was one of the partners, having invested his own money in the undertaking. He was also the cashier. He had the custody of the funds, likewise the general management and control. He alone authorized loans and discounts, and transacted all of the
Section 5, Code Civil Procedure, provides that the trustee of an express trust, though not the real party in interest, “ may sue without joining with him the person or persons for whose benefit the action is prosecuted.” It then gives the definition of such trustee as including “a person with whom or in whose name a contract is made for the benefit of another.” The assignment, though made to McClelland as cashier, was in reality for the bene-' fit of the Bank of Idaho Springs. Under our statute he became the trustee of an express trust, and as such was entitled to maintain the suit in his own name. The following cases, while not dealing with facts exactly similar, are yet sufficiently analogous in principle to be regarded as authorities supporting this conclusion: Considerant v. Brisbane, 22 N. Y. 389; Burbank v. Beach, 15 Barb. 326; Wolcott v. Standley, 62 Ind. 198; Davis v. Reynolds, 48 How. Pr. 210, and cases there cited. For many years the principle that an antecedent debt might constitute good and sufficient consideration for a new contract was denied, and there is yet conflict on the subject among the cases; but notwithstanding the contrary position of New York, Maine and other states, the decided weight of authority now supports the doctrine that such consideration is amply sufficient in connection with negotiable instruments. 1 Daniel, Neg. Inst. § 184; Swift v. Tyson, 16 Pet. 1; 3 Kent, Comm. 80; Roberts v. Hall, 37 Conn. 205; Pars. Notes & B. 257. For additional cases, see note found on page 273, 9 Amer. Dec.
This court has held “ that one who takes property in payment or security of a pre-existing debt is to be regarded as a purchaser for valuable consideration.” Knox v. McFarran, 4 Colo. 586; McMurtrie v. Riddell, ante, p. 497. If there is nothing upon the face of a negotiable instrument, or in the written indorsement or assignment, to notify the assignee that the instrument was
In Kimbro v. Lytle, 10 Yerg. 423, “due course of trade” is said to be “where the holder has given for the note his money, goods or credit at the time of receiving it, or has on account of it incurred some loss or incurred some liability.” The assignment of negotiable paper by operation of the bankrupt laws of the United States, by
In the case at bar the draft sued on was duly assigned by Skinner to plaintiff in payment of the $2,500 due from the assignor to the Bank of Idaho Springs. It is true, plaintiff invited the town marshal to go with him to the train, and it is also true that the constable and perhaps a justice of the peace, through the invitation of a third party, were present. But the evidence shows that the transaction was amicable throughout. Plaintiff informed Skinner that his draft had been dishonored, and asked payment. Skinner willingly consented to and did make payment by means of the draft now in suit. He presented another draft at the same time, drawn by a third bank in his favor for the sum of $2,400, which plaintiff recognized as genuine. That sum being insufficient, plaintiff accepted the $3,000 draft instead. There is nothing to show that Skinner knew of the presence of a marshal, constable, or justice of the peace. Ho threats or coercion on the part of plaintiff, other than a simple'
The foregoing conclusions dispose of all appellant’s objections we deem it necessary to discuss, save one. It is claimed that the first instruction given on behalf of plaintiff excluded the element of bad faith from the consideration of the jury; that it practically informed the jury that, if the assignment was for a valuable consideration and before due, plaintiff could not have been guilty of bad faith,— a proposition which would be clearly erroneous. But an examination of the instruction, as contained in the original transcript on appeal, shows that counsel have inadvertently misquoted the language, and changed the punctuation of the court, both in their abstract and in their brief. Counsel for the appellee contend that the instruction as originally given contained the word “and” before “is” in the fifth line of the transcript, which word has been omitted therefrom by the scrivener; and say that a duly authenticated copy of the in
The hardship suffered by appellant is to he regretted. But, under the legal principles announced, we do not see how it can escape liability in this action.
The judgment is affirmed.
Affirmed.