Champion Empire Mining Co. v. Bird

• Decision Date: 09 March 1896
• Citation: 7 Colo.App. 523,44 P. 764
• Parties: CHAMPION EMPIRE MIN. CO. v. BIRD. [1]
• Court: Colorado Court of Appeals

44 P. 764

7 Colo.App. 523

CHAMPION EMPIRE MIN. CO. v. BIRD. ^[1]

Court of Appeals of Colorado

March 9, 1896

Appeal from district court, Pitkin county.

Action by Willis E. Bird, mortgagee, against the Champion Empire Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm O'Brien and H.W. Clark, for appellant.

Robert G. Withers, for appellee.

BISSELL J.

The Champion Empire Mining Company on the 1st of May, 1893, made three promissory notes, each for the sum of $568.19, bearing 10 per cent. interest, to the order of B. Clark Wheeler. These notes were indorsed by Wheeler, and came into the possession of John Wardell. Wardell, while the holder of the paper, transferred it to Bird to secure sundry obligations. The notes were not paid at maturity, and Bird sued the company. The complaint alleged title and the amount due on the paper. The answer practically conceded the incorporation of the defendant company, the execution of the notes, but denied, on information and belief, that the plaintiff was the owner, and set up a special defense. This amounted to a statement of an indebtedness of the company, secured by the pledge of some treasury stock belonging to the corporation the execution of the notes, Wheeler's representations of the outstanding indebtedness, a promise on his part to use them in settlement of these debts, and an agreement by him to release the stock, and turn it into the treasury of the company. There were apt allegations of a condition attached to the delivery. The notes were produced at the trial by the plaintiff, whereby he showed, of course, title and possession. At the trial the company offered Newberry's deposition, from which it appeared that, at the time the paper was given, the mining company was indebted to Wheeler for advances, in the sum of $22,272.75, which had been expended for the legitimate objects and purposes of the company. The notes were given after an attempted settlement between Newberry, who was the president of the company, and Wheeler. Newberry testified to representations made by Wheeler respecting the difficulty encountered in borrowing money for the corporation, and statements respecting the pledge of certain stock, which is called "treasury stock," and averred to be the company's property. Newberry stated an agreement on Wheeler's part to take up this pledged stock, and return it to the treasury, on receipt of the notes, and after they should be negotiated or sold. Newberry did not attempt to testify to a conditional delivery of the paper. It is important to bear this proposition in mind. After the negotiations had been carried on between Newberry and Wheeler, the notes were executed by the corporation in Aspen, and there delivered to Wheeler, without condition or limitation, other than what may be inferred from what had been done by Newberry and Wheeler. Newberry's deposition was offered and objected to, as tending to vary by parol testimony the terms and conditions of a written contract. On the trial, the defendant offered Wheeler as a witness, and asked him some questions; and in his testimony he denied all that Newberry had said respecting the agreement to take up the stock and put it in the hands of the company, and the condition attached to the delivery of the notes, which, he asserted, were given to repay him for absolute advances. The defendant objected to some of this testimony, but afterwards waived this objection by an extended examination of Wheeler, whereby it appeared the notes were delivered unaccompanied by any condition, and without any agreement respecting the procurement of the treasury stock or its surrender to the company, and some evidence which tended to show the company never had any title to the stock which Wheeler had placed in the treasury of the company in order to raise funds to carry on the mining operations. As he testified, the stock was in no sense treasury stock, but stock which belonged to him, and which he put in the treasury. Whether the stock was so delivered as to give the company title does not appear, nor is it important.

There are several assignments of error, but the one principally argued, and on which the appellant relies, respects the objection to the testimony which has been referred to. In respect to the ruling of the court adjudging this testimony incompetent, it may be said the case was tried to the court the testimony was offered, and the court sustained the objection, holding it inadmissible under the issues. There is quite an attempt, in the argument, to change the...