1 Colo. App. 468 | Colo. Ct. App. | 1892
On the 5th of May, 1888, the defendant in error, Rowland, jointly with The Black Cloud Mill Company, executed his note for $4,870, payable on the 15th of June following at the National State Bank of Boulder. When the note was made Rowland delivered to the bank, as collateral security for its payment, sundry certificates of stock of the Mill Company, and, by a power of attorney, concurrently executed, appointed O. F. A. Greene his agent with power to sell and transfer the collaterals at public or private sale, and apply the proceeds, if any, as a payment on the note. The present action was commenced on the 8th of August, 1890. To avoid the bar of the statute of limitations the plaintiff averred two payments ; one of $989.55, of date August 15,1884 ; and one of $46.66, of date September 5,1884. The defendant took issue on these allegations and pleaded the statute. At the trial it appeared that the payments relied on were made by Greene, the attorney, and by the bank, as follows : under the authority, which has been previously referred to, Greene sold the securities at public sale and indorsed the proceeds, $989.55, on the note ; the other payment of $46.66 was the indorsement by the bank of the moneys which, September 5, 1884, were to Rowland’s credit on the books of the corporation.
Whether the application by Greene, of what was realized on the sale, was a payment which would avoid the bar of the statute in Rowland’s favor, obviously depends upon the
It is thus apparent that if the payment relied upon be made by the principal, or by any one on his behalf who is authorized to act, it will be operative to raise the promise by implication, and if made within the six years preceding the commencement of the suit, the defendant will be liable. It is a naked question of agency and of payment. ' It seems under the decisions to make but little difference in the case of a sale of collaterals and the application of their proceeds, whether it be done by an agent specially authorized to act in that matter, or whether it be performed by the holder of the promise, so long as by the terms of the convention he is entitled to sell and to apply as a payment the sums received-.
Some of the cases go so far as to declare, that there is no difference between an agency specially created for the purpose of making the sale and applying the money, and one arising by operation of the law, where the party holding the
We are driven in the present case to no such extreme position. To uphold a recovery it is only necessary to decide that where the payment is made by the application of the proceeds of the sale of collaterals, and this has been done by an agent authorized to do this particular thing, it raises in the law a promise sufficient to remove the bar of the statute, if it be made within the six years preceding the suit. All these things concur in the present case. By an instrument in writing the payor, Rowland, expressly constituted Greene his agent, and clothed him with authority to sell the col-laterals and apply the proceeds to the payment of the note. This was done in exact conformity with the authority granted, and it must be held to be such a voluntary payment as will take the case out of the statute.
The judgment of the court below was not in harmony with the law as herein declared, and the case must be reversed and remanded for a new trial.
Reversed.