11 Colo. 301 | Colo. | 1888
The defendant below, Rasmussen, on the 2d day of April, 1883, made, executed and delivered to the plaintiff below his two promissory notes — one for §100, due five months after date, and one for $375, due six months after date,— and these notes are set out in the complaint as plaintiff’s third and fourth causes of action. Defendant, for answer to these causes of action, alleges thatj being in failing and insolvent circumstances, he made a general assignment for the equal benefit of all his creditors, and then made a composition with his creditors, by the terms of which he agreed to pay them, and each of them, fifty cents on the dollar of their respective claims, to be paid partly in cash and partly by his indorsed notes; and his said creditors were each to accept such part payment in full satisfaction and discharge of their respective claims. That defendant, in pursuance of said agreement'and composition, paid to his said creditors, respectively, and in particular to the plaintiff, thirty cents on the dollar, and gave them his promissory notes for twenty cents on the dollar; and thereupon said creditors, and among the others the plaintiff, in consideration of said cash payments and notes, signed, sealed, executed and delivered to defendant their several releases, acquittances and discharges to the defendant of the balance of their said respective claims. The plaintiff’s replication admits defendant’s insolvency, and the making of the
On the trial the defendant testified in his own behalf, and at the conclusion of his testimony the plaintiff moved the court to strike out the same, on the ground that it constituted no defense to the action, and because such testimony was not admissible under the pleadings; upon which motion the court ruled as follows: “ I have come to the conclusion that I will have to disregard this testimony, on the ground that it constitutes no defense, in so far as it tends to show want of consideration.” This ruling of the court is assigned for error. There is sufficient evidence from which the court might have found that the allegations of the answer were proven, but the ruling of the court precluded any consideration of the evidence in support of the defense of want of consideration, set up in the answer, and was evidently based upon the assumption that the facts set up in the answer were insufficient to constitute such defense. By this ruling the question is raised whether, when a creditor has, with all the other creditors, made with the debtor a composition agreement to accept a part of his demand in full of the whole, the unpaid part will form a sufficient consideration to support a new promise by note, made after said composition agreement has been fully carried out between all the parties. It seems to be a well-settled rule of law, that, when a composition agreement has been entered into between the creditors of an insolvent debtor and such debtor, that, in consideration of the payment of a part of the respective claims of such creditors, they will accept such payment of a part in full satisfaction of the whole, and will release and discharge the debtor from all obligation to pay the balance, and such agreement has been carried out by the payment of the part agreed upon by the debtor, and the acceptance of such payment
Counsel for defendant in error contend that the evidence in the case is wholly insufficient to overcome the plaintiff’s case. We infer from this argument that counsel assume that the ruling of the court upon the plaintiff’s motion to strike out the testimony of defendant, if
De France and St allcup, CO., concur.
For the reasons assigned in the foregoing opinion the judgment is reversed and the cause remanded.
Reversed.