4 Colo. App. 440 | Colo. Ct. App. | 1894
delivered the opinion of the court.
This was a suit by the appellee against the appellant upon an instrument of which the following is a copy :
“Denver, Nov. 19, 1891.
“Mr. A. L. Welch:
“ Please pay to George Mayer the sum of (1500) five hundred dollars out of money due us for brick work done on your building at Sixteenth and Champa, and charge same to our account. The same to apply on the first money due us.
“ Louis Groth & Co.”
The complaint averred the making of the order by Louis Groth & Co., its delivery to the plaintiff, and its acceptance by the defendant. ■ The complaint also alleged that money to more than the amount of the order was, at the time,- due from the defendant to Groth & Co., but it contained .no averment that the order was given for any valuable or other consideration. The answer was a general denial. The .cause was tried by the court, without a jury, and judgment given against the defendant for the amount of the claim. From this judgment the defendant appealed.
The only evidence in the case was that introduced by the plaintiff. The defendant offered. none. We have before us tlie testimony of four witnesses, being all who testified, in which we find the following facts: On November 19,1891, the day on which the order was drawn, it was presented by the plaintiff to the defendant for payment. The defendant
Several reasons for the reversal of the judgment are urged by counsel for the defendant, in an able and comprehensive argument; and the questions presented are entitled to careful consideration. These questions relate to the character of the instrument sued on, the rights of .the plaintiff under it, and the kind and amount of proof necessary to enable him to recover. The order set out in the complaint, and introduced in evidence, is certainly not a negotiable instrument. It is payable out of a particular fund, which might or might not be sufficient. If the sum of $500 or more was dué on account of the brickwork, then, if other necessary conditions concurred, the entire amount of the order was payable; but if that sum was not due on that account, then the recovery would be confined to what was actually due; and it would be entirely immaterial how much the defendant might owe Groth & Co. on any other account, because it was only to the amount due for the brickwork that the order applied. This instrument was therefore not a bill of exchange, and the rules by which it would be governed are essentially different from those which would apply to a negotiable bill. Not being a bill of exchange, the only effect which it could have, would be as an assignment to the plaintiff of a right to receive from the defendant money which he owed to Groth & Co. on the account mentioned. If it had been drawn so as to cover the entire demand against the defendant, then, upon notice to him, it would have been an assignment of the whole indebtedness; but it was not so drawn, and it was 'therefore an attempted transfer of a part of the fund, which could not be perfected by mere notice to the drawee; and to become operative as an assignment it must have been made with his consent, or he must have subsequently ratified it.
The evidence of acceptance both by consent and ratification is abundant; and, in addition, there is the very important fact of an express and unequivocal promise to pay. But counsel insist that, conceding it to be true that defendant accepted the order, yet it, being paj^able out of a specific fund, was not an assignment pro tanto of the fund, unless it was made upon a valuable consideration; and that, therefore, to entitle the plaintiff to a recovery, he must aver and prove a consideration for the order moving from himself to Groth & Co. An attempt to prove such consideration was made, as we have seen, but the testimony, after it was given, was objected to, and the objection sustained. The plaintiff claims that the objection came too late, and that therefore the evidence ought to stand. We think the objection, so far as its grounds are concerned, was well taken. The evidence was not relevant because it supported no issue made by the pleadings ; and we think it was immaterial, so that, whether it be allowed to stand or not is not, in our judgment, a matter of much importance. As between drawer and payee, indorser and indorsee, or assignor and assignee, there is no doubt that the question of consideration may be material. A drawer cannot be held liable to his payee, or an indorser to his indorsee, on account of a bill for which he has received no value; and this rule applies alike to negotiable and non-negotiable paper. One difference between a negotiable and anon-negotiable instrument is that the former imports a consideration, while the latter does not. In the one case neither averment nor proof of consideration is necessary ; and if the defendant relies on want of- consideration as a defense, he must specially plead and prove it; while in the other, consideration must be averred and proven by the plaintiff. The reason why a
It is objected that there was not sufficient proof of an indebtedness from the defendant to Groth & Co. Counsel say that the plaintiff stands in the exact position of his assignor; and, in order .to a recovery, must make the same averments and the same proof which would be required in a suit by Groth & Co. upon their contract. We agree with counsel that the plaintiff can recover only upon the same conditions which would permit a recovery by Groth & Co. if no assignment of the claim had been made; but we do not agree that the same fullness of averment is required from him that would be necessary in a complaint by his assignor. In aq action by Groth & Co., upon their contract, a compliance on their part with the terms and requirements of the contract must have been alleged in the complaint. The contract would have been the foundation of their suit, and without such allegations the complaint would not have been good. But, in this case, the foundation of the action is the order and its acceptance; and it was sufficient to allege, in the terms of the order, that the amount was due for the brickwork it mentioned. But, it must appear from evidence, competent for the purpose, that the money was actually owing by the defendant upon that account, and could have been recovered by Groth & Co., if the right to receive it had not been transferred to the plaintiff. Testimony was admitted against defendant’s objection that the amount due was $594. We do not think that the testimony was proper in the form in which it was given, but the reasons for this opinion are entirely different from those assigned by the defendant. However, outside of this testimony, there was sufficient evidence to authorize a finding that an amount equal to the sum named in the order was actually due. When the order was presented to the defendant he said it was right, and promised to pay it. He made several subsequent promises of payment. From time to time he fixed a day on which the money would be paid, and,the reason always given for his failure to pay it
The record is free from material error, and the judgment appears to be right.- It will therefore be affirmed.
Affirmed.