Arms Roofing Co. v. Petrie, 17978

Decision Date03 September 1957
Docket NumberNo. 17978,17978
Citation314 P.2d 903,136 Colo. 154
PartiesARMS ROOFING COMPANY, Inc., a Colorado Corporation, Plaintiff in Error, v. Bert A. PETRIE, Irene Petrie, and Allied Building Credits, Inc., Defendants in Error.
CourtColorado Supreme Court

Gelt and Grossman, Sydney H. Grossman and Sidney H. Tellis, Denver, for plaintiff in error.

No appearance for defendants in error.

SUTTON, Justice.

Plaintiff in error, Arms Roofing Company, Inc., will be referred to herein as Arms; defendants in error, Bert A. Petrie and Irene Petrie, as Petries and Allied Building Credits, Inc., as Allied.

Allied, as a holder in due course, commenced action against the Petries on a promissory note dated November 18, 1953, executed by the Petries and payable in installments to the order of Arms. The note originally had been given by the Petries as payment for a new roof on their home and was later assigned by Arms without recourse to Allied. The Petries secured an ex parte order of court to join Arms as a 'third party defendant' under R.C.P. Rule 14(a) alleging duress in the execution of the note and demanding judgment against Arms for all sums Petries may be adjudged to pay Allied. The demand is considered as one for 'damages' as alleged by Petries. At the commencement of the trial Arms moved that the third party complaint be stricken, which motion was denied. The case was tried to a jury which, based upon an admission of no valid defense by Petries, followed by a directed verdict, found for Allied and the jury then proceeded to return a verdict in favor of the Petries against Arms. This verdict fixed no amount which the Petries were entitled to recover from Arms, however the court received and accepted it, discharged the jury and entered an order directing judgment against Arms in the amount of $353.70 and costs. An order dispensing with the necessity of filing a motion for a new trial was entered and Arms' motion for judgment non obstante veredicto and for other relief was denied. Petries and Allied have entered no appearances and filed no briefs in this court and Arms is here by writ of error.

Arms urges for reversal that:

1. The trial court erred in denying the motion to strike the third party complaint.

2. The evidence did not establish any claim whatsoever against Arms.

3. Because the verdict against Arms did not fix the amount thereof, the trial court had no power to enter judgment against Arms.

Since the first point governs the matter we need not consider the other points urged.

Question To Be Determined:

May The Makers Of a Promissory Note, When Sued By a Holder In Due Course, File a Third Party Complaint Under Rule 14(a), R.C.P., Against The Original Payee Who Transferred The Note Before Maturity Without Recourse?

This question is answered in the negative. The pertinent part of Rule 14(a) provides: '(a) When Defendant May Bring in Third Party. Before the filing of his answer a defendant may move ex parte or, after the filing of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. * * *.' (Emphasis supplied.)

Though Rule 14(a) has not been heretofore construed in this particular, it is almost identical with Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which has been interpreted in similar cases. In considering its application to the facts here we point out that Allied received the note in due course for value and that it was assigned without recourse and without notice. Allied therefore was a holder free from any defenses which the Petries may have had against Arms. The admission of Allied confirmed this.

The facts thus show that the claim for damages by Petries against Arms was independent and apart from the claim of Allied as a holder in due course of a negotiable promissory note. The result of a trial between Petries and Arms could not affect Allied's right to a judgment against Petries on the note, nor could it form the basis of a judgment for Allied against Arms. A fortiori the third party complaint injected into the case controversies which had nothing to do with Allied's claims.

In United States v. Dobrowolski, D.C.Md.1954, 16 F.R.D. 134, 136, the facts were similar to those here and the court said in part:

'The underlying purpose of this Rule (14(a)) is to consolidate suits that should be tried together, in the interest of saving the time of the courts, parties and witnesses, and avoiding unnecessary expense. But the Rule is not intended to be used as a means for trying, in the same proceeding, two separate and distinct causes of action. Here the Government is suing on the note as a holder of it with title derived from a holder in due course, namely, the savings bank, and as one that has not been a party to any fraud or illegality affecting the instrument, and thus has all the rights of the former holder in due course in respect of all parties prior to the latter. Uniform Negotiable Instruments Act, Art. 13, Ann.Code of Md.1951, Sec. 78. The Government was not a party to the contract between the defendants and Henderson. Whether Henderson, as payee of the note, is entitled to be paid or whether the makers of the note, the defendants, have a good defense against payment, whether it be fraud or what not, on the part of the payee, are questions not involved in the Government's suit.

'The same question has been before other District Courts on similar facts, and similar motions of third- party defendants were granted, as we think, rightly. See especially United States v. Jollimore, [D.C.] 2 F.R.D. 148, decided by the District Court for the District of Massachusetts; and United States v. Dehaven, [D.C.] 13...

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4 cases
  • Mathews v. McConnell
    • United States
    • Georgia Court of Appeals
    • October 4, 1971
    ...v. G.M.A.C., 120 Ga.App. 328, 330, 170 S.E.2d 454, 456, this court cited with approval the Colorado court's holding (Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903) that: 'Rule 14(a) does not permit nor does it grant discretion to the court to implead when there are separate and in......
  • Public Service Co. of Colorado v. District Court In and For City and County of Denver, 81SA192
    • United States
    • Colorado Supreme Court
    • December 28, 1981
    ...could have brought a products liability action against them. This argument is derived from the rule announced in Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957), and reaffirmed in Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). These cases establi......
  • Bill Heard Chevrolet Co. v. General Motors Acceptance Corp., 44755
    • United States
    • Georgia Court of Appeals
    • September 19, 1969
    ...or whether he seeks rescission and damages for fraud. The exact question, under an identical rule, was stated in Arms Roofing Company v. Petrie, 136 Colo. 154, 314 P.2d 903, as follows: 'May the makers of a promissory note, when sued by a holder in due course, file a third party complaint u......
  • Ashford v. Burnham Aviation Service, Inc., 21332
    • United States
    • Colorado Supreme Court
    • May 22, 1967
    ...at the request of Ashford and in consideration that Ashford pay plaintiff its charges for overhaul. * * *' In Arms Roofing Company, Inc. v. Petrie, 136 Colo. 154, 314 P.2d 903, we quoted with approval from United States v. Jollimore, 2 F.R.D. '* * * the test to determine when a third-party ......
2 books & journal articles
  • Handling the Used Car Warranty Case
    • United States
    • Colorado Bar Association Colorado Lawyer No. 3-1, November 1973
    • Invalid date
    ...(as amended, 1971). [16] Apparently, the buyer would be unable to implead the seller under Rule 14 C.R.C.P. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). [17] The measure of damages suffered by the buyer in his action against the seller will be his liability to the direct ......
  • Impleader Under Rule 14(a): Will the Practice in Colorado Ever Catch Up to the Theory?
    • United States
    • Colorado Bar Association Colorado Lawyer No. 17-4, April 1988
    • Invalid date
    ...lawsuit." Further amendments to Rule 14 were made in 1963, 1966 and 1987; however, these amendments are not relevant to this article. 13. 136 Colo. 154, 314 P.2d 903 (1957). 14. Under Colorado's version of the Uniform Negotiable Instruments Law in effect when Arms Roofing was decided, holde......

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