Abley v. Davies
| Decision Date | 24 September 1928 |
| Docket Number | 12096. |
| Citation | 84 Colo. 398,270 P. 880 |
| Parties | ABLEY v. DAVIES. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.
Replevin by V. E. Abley against Emma M. Davies. Judgment for defendant, and plaintiff brings error and applies for supersedeas.
Reversed and remanded, with directions.
Harold G. King, of Denver, for plaintiff in error.
H. M Kaufman and H. A. Feder, both of Denver, for defendant in error.
The plaintiff in error, V. E. Abley, brought a replevin action against Emma M. Davies, the defendant in error, and was defeated. We are requested to finally dispose of the case upon application for supersedeas.
W. J Lynch owned the furniture in a rooming house at No. 1450 Pennsylvania street, in Denver, and Mrs. Davies owned the furniture in a rooming house at No. 927 Broadway, in the same city. Lynch had given his promissory note secured by a chattel mortgage of his furniture, and Abley was the owner of the note, having purchased the same from J. C. Wilkins, a broker. Mrs. Davies' furniture also was subject to a chattel mortgage. Lynch's rooming, house was much smaller than Mrs. Davies' rooming house. He wanted a larger house. Through the efforts of Wilkins, an exchange was effected. Mrs. Davies gave to Lynch her note for the balance he owed on his note held by Abley. To secure her note, Mrs. Davies gave a chattel mortgage of the furniture in the Pennsylvania street house. Lynch indorsed the note and delivered it and the Davies mortgage to Wilkins, who delivered them to Abley in exchange for the Lynch note and mortgage, whereupon the Lynch note was canceled and the Lynch mortgage was released. In other words, to enable the parties to make the exchange of rooming houses, Abley, at the request of Wilkins, accepted the Davies note and mortgage in exchange for the Lynch note and mortgage that Abley theretofore had purchased from Wilkins. Abley neither asked for nor received any consideration for doing so; it was done as an accommodation. Mrs. Davies did not know Abley; she never saw him or had any conversation with him until months after the exchange was made. Abley took no part in the negotiations for the exchange of the rooming houses, and was not present during such negotiations. The Davies note was left by Abley with Wilkins for collection, and two payments thereon were made to Wilkins. As no other payments were made, though due Abley brought this replevin action. Resisting the action Mrs. Davies alleged that Wilkins falsely represented to her that the Lynch property was free from incumbrance, and thereby induced her to make the trade; denied that she executed or delivered the note or mortgage to Lynch; admitted that she signed some papers, but alleged that she did not know what they were; alleged that when she started to read them, Wilkins did not allow her to proceed, saying that it would take up too much time, and that she could rely upon him; admitted making two payments on the note, but alleged that the payments were made under duress and coercion; alleged that there was no consideration for the note, and that Abley is not a bona fide holder of the note or mortgage. Abley, in reply, pleaded that he was a bona fide purchaser of the note and mortgage. There was no evidence tending to show that Mrs. Davies made either of the two payments under duress or coercion. That she signed the note and executed the...
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