Carson v. Bradford

• Decision Date: 10 October 1932
• Docket Number: 12775.
• Citation: 91 Colo. 434,15 P.2d 977
• Parties: CARSON v. BRADFORD et al.
• Court: Colorado Supreme Court

15 P.2d 977

91 Colo. 434

CARSON v. BRADFORD et al.

No. 12775.

Supreme Court of Colorado

October 10, 1932

Rehearing Denied Nov. 14, 1932.

In Department.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by J. Harry Carson against Rollie W. Bradford and others. To review a judgment for defendants, plaintiff brings error.

Affirmed.

Shrader P. Howell and James H. Teller, both of Denver, for plaintiff in error.

Lewis &amp Grant, F. W. Sanborn, Jr., and J. R. Harris, all of Denver for defendant in error Kistler.

Wilbur F. Denious, Hudson Moore, and Dayton Denious, all of Denver, for defendants in error Bradford and Bradford-Robinson Printing Co.

ALTER J.

J. Harry Carson, plaintiff in error, will hereinafter be referred to as plaintiff, and Rollie W. Bradford, Erie O. Kistler, and the Bradford-Robinson Printing Company, a corporation, defendants in error, will be referred to as defendants, or as Bradford, Kistler, or the printing company. Plaintiff brought an action to recover a money judgment against defendants; defendants' demurrer to plaintiff's amended complaint was sustained; plaintiff elected to stand upon his amended complaint; and thereupon judgment was rendered in favor of defendants. Plaintiff prosecutes this writ assigning as error the sustaining of the demurrer and rendering judgment thereon.

The amended complaint alleged that on November 25, 1925, plaintiff and the Carson Press Company, a corporation, made, executed, and delivered their two promissory notes to the Home Finance Company, a corporation, and to secure the prompt payment thereof, executed their chattel mortgage, and, as further security therefor, plaintiff executted and delivered to the Home Finance Company his certain deed of trust upon property belonging to him in the city and county of Denver, which property was then subject to a first deed of trust, to secure the payment of plaintiff's note for $18,000. On March 1, 1928, by virtue of a certain execution issued out of the district court, those chattels of plaintiff and the Carson Press Company, given as security to the Home Finance Company, together with other chattels, were sold at public sale to the printing company, subject to the lien of the Home Finance Company's chattel mortgage. On or about March 1, 1928, the printing company offered to pay the Home Finance Company the balance due it on the two notes of plaintiff and the Carson Press Company, provided the Home Finance Company would indorse the two notes in blank, rather than marking them paid and canceled; but this the Home Finance Company refused to do because it, as agent for plaintiff, had some prospective purchasers for the real estate incumbered by deeds of trust, and in event of a sale thereof, would be entitled to a commission of $600 from plaintiff. Thereafter, and on March 8, 1928, the printing company paid the Home Finance Company the balance due upon the two promissory notes of plaintiff and the Carson Press Company, and, in addition thereto, the sum of $600, this last-mentioned sum being the amount of commission the Home Finance Company would be entitled to receive from plaintiff in event a sale of the incumbered real estate was consummated through its efforts, and, upon payment of this amount, the Home Finance Company indorsed the two secured promissory notes in blank, and delivered them, together with the deed of trust and chattel mortgage securing their payment, to the printing company. It is further alleged that the Home Finance Company had prospective purchasers for the real estate, and, in event of sale, the price would be in excess of all incumbrances thereon, and that the real estate was reasonably worth the sum of $45,000. On April 3, 1928, the owner of the first deed of trust on the real estate caused the same to be foreclosed, and a certificate of purchase was issued, and, on the same day, Kistler, who, it was alleged, had in some manner secured the two promissory notes from the printing company without consideration therefor, representing himself to be the owner thereof, and that there was an unpaid balance of $3,823.49 due thereon, redeemed from the foreclosure sale by paying the sum of $19,795 to the public trustee for the use of the holder of the certificate of purchase, and, on April 4, 1928, a certificate of redemption was issued Kistler.

The complaint alleged that the offer made by the printing company to the Home Finance Comapny for the indorsement of the two promissory notes was pursuant to a 'fraudulent plan and scheme theretofore formed by the said several defendants herein, to obtain said notes from said Finance Company uncancelled, and to use them in the manner hereinafter stated, and thus recover the amount so paid as aforesaid on said notes.' Further, it is...