City of Central v. Wilcoxen

• Decision Date: 01 December 1877
• Parties: CITY OF CENTRAL v. WILCOXEN.
• Court: Colorado Supreme Court

3 Colo. 566

CITY OF CENTRAL v. WILCOXEN.

Supreme Court of Colorado

December, 1877

Error to District Court of Gilpin County.

THIS was an action of assumpsit, brought by Wilcoxen against the City of Central. The declaration consisted of the common counts for work and labor, money had and received, money paid, laid out and expended, and money found due upon an account stated. The defendant filed the general issue and a special plea:

'Actio non; because it says the only cause of action sued on in the said several counts of plaintiff's declaration are the several instruments in writing set out with said declaration and avers that fourteen of said instruments in writing amounting to $976.75 purport to be city warrants drawn by Robert Teats as mayor of defendant on city treasurer, and being fraudulently drawn by said Teats, the said Teats and plaintiff and divers other persons acting in collusion with said Teats and said plaintiff, drew and caused to be drawn said false and fraudulent instruments for the purpose of heating and defrauding defendant, and that said pretended warrants were drawn in favor of persons to whom defendant was in no manner indebted, and for pretended accounts and claims against defendant which had never been audited or allowed by the city council of the City of Central, and that defendant was never at any time indebted to the parties in whose favor said pretended warrants were drawn, and that said plaintiff was a party to said fraudulent transaction, and that the residue of said instruments are city warrants of the City of Central, drawn by Thomas Mullen as mayor of said city, and were delivered by order of city council of said city to plaintiff, and accepted by plaintiff in full satisfaction and discharge in payment for services rendered by plaintiff for defendant and accepted by plaintiff in lieu of money, and less than their par value, the said defendant paying said plaintiff the difference between the par value of said warrants and the cash value thereof, and this the said defendant is ready to verify,' etc.

The cause was tried at the April term, 1874, of the district court, without the intervention of a jury. The plaintiff offered in evidence a number of city warrants purporting to have been issued by the City of Central and directed to its treasurer. Objection was made by the defendant because the execution of the warrants had not been proved. The objection was sustained and the plaintiff required to produce evidence of the execution of the warrants, after which they were again offered in evidence. The defendant again objected to their introduction, 'because the execution of the same is not proven, and because they have not been indorsed to the plaintiff, and because those warrants which had been presented for payment were not evidence in support of this action, and were not yet due, because there was no evidence that there was any money in the treasury of defendant that could be legally applied to the payment of the same.'

The objection was overruled and the warrants received in evidence. The defendant produced evidence, over the objections of the plaintiff, to support the allegations of its special plea. The court gave judgment for the plaintiff in the sum of $815.60. To reverse this judgment the defendant sued out this writ of error.

Mr. H M. OROHOOD, for plaintiff in error.

Messrs SYMES & DECKER, for defendant in error.

THATCHER C. J.

Under the pleadings, whether the claims for which the city warrants in controversy were issued, were allowed by the council of Central City, or whether the mayor and Henry Grannis, whose name is signed thereto as clerk, were, in behalf of the city, authorized to execute the warrants, are not pertinent inquiries. No issue was tendered, that, under the statute, would permit the defendant to deny the authority of the mayor and clerk to execute the warrants in question.

Section 14 of the Practice Act (R. S., p. 506) provides. 'No person shall be permitted to deny, on trial, the execution of any instrument in writing, whether sealed or not upon which any action may have been brought, or which shall be pleaded or set up by way of defense, or set-off, unless the person so denying the same shall, if defendant, verify his plea by affidavit, and if pl...