Colorado Nat. Bank of Denver v. Boettcher

• Decision Date: 01 December 1879
• Citation: 5 Colo. 185
• Parties: THE COLORADO NATIONAL BANK OF DENVER v. BOETTCHER.
• Court: Colorado Supreme Court

5 Colo. 185

THE COLORADO NATIONAL BANK OF DENVER v. BOETTCHER.

Supreme Court of Colorado

December, 1879

Appeal from District Court of Arapahoe County.

BOETTCHER the appellee, filed his complaint in the district court alleging substantially that appellant was a banking corporation; that on January 31st, 1878, appellant was possessed of certain moneys of Shackelton & Brinker co-partners, to be paid on demand; that on said day Shackelton died, leaving said Brinker surviving; that about February 2, 1878, appellant received other moneys for use of said firm, also payable on demand; that February 8th said moneys amounted to $1,000; that on said February 8th Brinker as surviving partner, assigned all said moneys, and ordered the same paid over to appellee; that appellant had notice of such assignment; that appellee demanded payment, which was refused. Demand for judgment, etc.

Appellant answered substantially as follows:

Admitted that appellant was a corporation; that Shackelton and Brinker were partners; that Shackelton died, etc.; and also admits the assignment as alleged, but avers that knowledge of the same came to it on the evening of February 8th, about 7 o'clock. Denied that said moneys, or any part thereof, were held by it to be rendered to said Brinker, or subject to his order, or that appellant was indebted to said firm of Shackelton & Brinker at the time of said assignment to appellee. Averred that at the time said assignment was made, Shackelton & Brinker were indebted to appellant in a larger sum of money than that assigned to appellee; that the same was evidenced by a promissory note, executed by Shackelton & Brinker, dated December 6, 1877, payable sixty days after date, to appellant, for $1,200, with interest thereon; that said note matured on February 7, 1878, and prior to assignment to appellee, and that appellee had knowledge of the fact prior to the assignment.

By way of cross-demand, appellant averred that at the time of the assignment of said moneys, and demand of appellee therefor, said Shackelton & Brinker, and said Brinker, as surviving partner, were indebted to appellant in $1,200 and interest, according to the effect and tenor of a certain promissory note.

Averred that said note became due and payable February 7, 1878; that the whole thereof remained unpaid February 8, 1878, the date of said assignment, and demand for the moneys in said complaint mentioned; that said sum of money due and payable on said note is still unpaid; offer of appellant to set off amount due on said note; demand for judgment.

Afterward the appellee, by leave of court, filed his amended complaint, which substantially alleged, as a second cause of action:

That on January 28, 1878, appellant was and is a banking corporation; that Shackelton & Brinker were copartners; that they made their check in writing, duly stamped, etc., thereby directing said appellant to pay to appellee or order, $472⁴⁹ sub100 ; that January 31, 1878, Shackelton died, leaving Brinker surviving; that before said check became due according to its terms, Shackelton & Brinker, and Brinker, as survivor, paid to appellant, to meet said check, to be paid thereon, and on other checks, large sums of money, more than the amount mentioned in said check; that appellant received the same to be paid on the checks of Shackelton & Brinker; that appellant, in consideration of the receipt of said money, agreed to pay said moneys upon the checks of Shackelton & Brinker, or of Brinker, survivor; that on February 5th, and on February 7th, 1878, while said moneys were held by appellant, appellee presented said check and demanded payment thereof, and appellant refused.

Third cause of action: averments substantially the same as in second cause of action, except as to check. Check dated January 28, 1878, payable to order of appellee, six days after date, for $453²⁵ sub100 .

Fourth cause of action: averments substantially as in second and third cause of action, except as to check. Check dated January 31, payable to order of appellee, for $437.62. Jurat.

The answer of appellant to amended complaint.

Denied that Shackelton & Brinker, or Brinker as surviving partner, delivered or deposited with appellant large sums of money to meet or pay the said checks; that it was agreed that any moneys deposited with appellant were to be paid out on said checks, or any of them; that Shackelton & Brinker, or Brinker, etc., deposited with appellant sufficient money to pay said checks; that on the 5th or 7th of February, 1878, said parties had deposited with appellant sufficient money to pay said checks; that appellee presented said checks for payment on the 5th of February, 1878.

Answer alleged as a second defense, by way of cross-demand or set-off, that Shackelton & Brinker, or Brinker, etc., were indebted to appellant $1,200, and interest for money loaned, evidenced, etc., by promissory note, etc.; that Shackelton & Brinker, or Brinker, etc., did not have a sufficient amount of money to their credit to pay said note; that at the maturity of said note the sum to the credit of Shackelton & Brinker, or Brinker, was about $1,000, which appellant offered to set off, etc.

Replication: appellee had not sufficient knowledge to found belief, and asked that appellant be held to prove; that Shackelton & Brinker, or Brinker, etc., were indebted to appellant, etc., as evidenced by promissory note, etc., or that said note matured February 7, 1878, or that they were indebted to appellant in any sum whatever.

Upon the trial of the cause the jury, under the direction of the court, rendered a verdict in favor of the appellee, assessing his damages at $997.83; a motion for a new trial was interposed by the appellant and denied, and judgment entered on the verdict.

Mr. JOHN Q. CHARLES, for appellant.

Messrs. WELLS, SMITH & MACON, for appellee.

BECK J.

The verdict in this case appears to have been directed for the plaintiff, Boettcher, upon the view of the law taken by the district judge, that the holder of a check drawn against funds can maintain an action in his own name against the drawee who refuses payment,...