Bartholomew v. Emerson-Brantingham Implement Co.
| Decision Date | 02 February 1920 |
| Docket Number | 9563. |
| Citation | 187 P. 538,68 Colo. 244 |
| Parties | BARTHOLOMEW v. EMERSON-BRANTINGHAM IMPLEMENT CO. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, City and County of Denver; Clarence J Morley, Judge.
Suit by the Emerson-Brantingham Implement Company against A. L Bartholomew. To review judgment for plaintiff, defendant brings error.
Judgment reversed and a new trial granted, with leave to both parties to amend.
George F. Dunklee and Edward V. Dunklee, both of Denver, for plaintiff in error.
Frank L. Grant, of Denver, for defendant in error.
The suit was by defendant in error, plaintiff below, on promissory notes. The answer denied nonpayment, averred payment, and denied all allegations not admitted. There was no replication; consequently the plea of payment stands admitted in the pleadings.
This court has wavered on the question, but has finally determined that payment is an affirmative defense, even when it is negatived in the complaint, and the answer contains a general denial. Nitro Co. v. Kearns, 50 Colo. 1, 9 114 P. 396; Harvey v. D. & R. G. R. Co., 44 Colo. 258, 262 99 P. 31, 130 Am.St.Rep. 120; Florence O. & R. Co. v. Bank, 38 Colo. 120, 122, 88 P. 182; Thomas v. Carey, 26 Colo. 485, 495, 58 P. 1093.
Since, however, payment was treated by both parties and the court as an issue, and the question is not raised here, we shall not reverse the case on that point, but shall consider the case as if the plea of payment had been traversed.
The district court directed a verdict for the plaintiff for the full amount of his claim.
1. The plaintiff company claims that the facts shown by the evidence do not constitute payment, and so, since payment is the only issue, are irrelevant.
The evidence was that in 1909 defendant wrote to Reeves & Co., saying he would buy a new 20 horse power engine if they would send a man along to fix up the deal on the old engine and help make a partnership settlement with defendant's partner, Ong. They sent one Spicer. Upon the settlement Ong owed defendant $600, and defendant arranged with Spicer to buy a new engine, giving notes for the price, and indorsing the two $300 notes given by Ong in settlement of the partnership matters as partial payment of the notes so given. This was done, and Spicer took all the notes, and the Ong notes were accepted and retained by Reeves & Co. Later the notes were held by plaintiff, and one Bryson appeared, claiming to be the agent of plaintiff and threatened proceedings unless new notes were given. Defendant claimed that th Ong notes should be credited and Bryson agreed that they 'should be a payment on the new notes.' Thereupon new notes--that is, the notes now in suit--were given.
'Payment' has been defined variously.
30 Cyc. 1180. It may be defined as the discharge of indebtedness by delivery of money or its equivalent to the creditor. It must be intended as whole or partial discharge by both parties. If defendant's testimony was true, the Ong notes were to be applied as a partial discharge of the notes in suit.
Payment need not be in money; that is payment which the parties agree is...
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Eastwood v. Schultz
... ... 21, 206 P. 839; Bradley Metcalf ... Co. v. McLaughlin, 87 Okla. 34, 208 P. 1032; ... Bartholomew v. Emerson-Brantingham Implement Co., 68 ... Colo. 244, 187 P. 538; Eastern Oil Co. v. Smith, 80 ... ...
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Continental Oil Co. v. Zaring
...may serve as payment, however, if they are intended by both parties to act as a discharge of the debt. See Bartholomew v. Emerson-Brantingham Implement Co., 68 Colo. 244, 187 P. 538. There was evidence in the record to support a finding that the actions here were intended by all parties to ......
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Colorado Federal Sav. and Loan Ass'n v. Beery
...payable to the agent, constitutes payment from the time that such check is cashed in due course.' See also Bartholomew v. Emerson-Brantingham Implement Co., 68 Colo. 244, 187 P. 538. In view of our conclusion that Schwab had authority to receive the money and that the check payable to him w......
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Sethman Elec. & Mfg. Co. v. Mountain States Life Ins. Co., 12816.
... ... payment is an affirmative defense and must be so pleaded ... Bartholomew v. Emerson-Brantingham Imp. Co., 68 ... Colo. 244, 187 P. 538; Nitro Powder Co. v. Kearns, ... 50 ... ...