THOMSON, J.
Action
on a promissory note. Judgment for plaintiff, from which the
defendants appeal. The judgment was rendered upon the
pleadings. The following are the complaint and amended answer
in full:
Complaint
"The plaintiff complains of the defendants, and alleges
That on June 9, A.D.1888, the defendants, for a valuable
consideration, executed and delivered to this plaintiff an
instrument in writing for the payment of the sum of seven
hundred dollars ($700), whereby, for value received, they
promised to pay to the plaintiff the sum of seven hundred
dollars ($700), with interest thereon from December 1
A.D.1888, in words and figures as follows, to wit: '700.
Rockford, Colorado, June 9th, 1888. Due and payable to W.R
Hunter for "claim on the public lands" this day
quitclaimed by said Hunter to me, the sum of seven hundred
dollars. It is expressly understood that this note is not
assignable; that it shall not bear interest until 1st Dec.,
next; and that its collection shall not be enforced by suit
before said 1st Dec., next. Value received. Sarah F. Cooper,
F.C. Childs.' That no part of said sum has been paid, and
that the same is now due, with interest thereon from December
1, A.D.1888. Wherefore plaintiff prays judgment against
defendants for the said sum of seven hundred dollars ($700),
with legal interest thereon from said December 1, 1888, to
date of judgment, and for costs of suit."
Amended
answer: "Come now the defendants herein, and, by leave
of court first had and obtained, file this their amended
answer in lieu of the answer heretofore
filed, and deny each and every allegation in the complaint
herein, save and except the allegations hereinafter expressly
admitted. Admit the execution and delivery of the instrument
sued upon herein, a copy of which is contained in said
complaint, but allege That defendant Sarah F. Cooper was the
maker thereof, and that defendant Childs merely signed the
same as surety. That, prior to the date of said instrument,
plaintiff, Hunter, represented to defendant Cooper that he
was in lawful and peaceable possession of a certain tract of
land, containing 120 acres, more or less, situated in
Garfield county, state of Colorado, and a short distance
south of the town of Satank, in said county, and that said
plaintiff was using and cultivating the same, in good faith,
for an agricultural pre-emption claim; that he had a lawful
right to sell and dispose of the same; and that he could and
would give to defendant Cooper possession of the same in
consideration of her payment to him of the sum of $700.
Whereas defendants are informed and believe, and so charge
the fact to be, that plaintiff theretofore had been placed in
possession of said land by Isaac Cooper, since deceased, with
the understanding and agreement that said plaintiff should
proceed to pre-empt said land, and convey to said Isaac
Cooper an undivided interest therein; said Cooper having paid
for all the improvements thereon, as well as having furnished
plaintiff with a team of horses and wagon, all for the
purpose of carrying out said agreement hereinbefore
mentioned. That plaintiff had, prior to the execution and
delivery of said instrument sued on, for the consideration of
$600 cash to him in hand paid by defendant Cooper, sold and
transferred to defendant Cooper all and singular the said
personal property and improvements on said claim, and placed
her in possession thereof. That the only consideration for
said instrument of writing set forth in said complaint was
the pretended conveyance to defendant Cooper of said
pretended claim on the public lands, and that plaintiff did
not in fact have or turn over possession
nor convey to defendant Cooper any property or interest or
title whatever to said pretended claim, as a consideration
for said
instrument or obligation set forth in said complaint."
Upon
these pleadings the plaintiff's motion for judgment was
interposed. While the motion was pending and undetermined,
the defendants asked and were refused leave to file a second
amended answer. The pleading tendered is as follows:
"Come
now the defendants, and, by leave of court first had and
obtained thereto, file this their second amended answer
herein: Deny each and every allegation in the complaint,
save and except those expressly in this amended answer
admitted. Admit the execution and delivery of the
instrument sued on in this action, but allege that
defendant Childs signed said note or instrument merely as
surety or accommodation maker, and received no benefit
whatever therefrom. Allege that said note or instrument was
given by defendant Cooper for a pretended claim on the
public lands of the United States, which plaintiff, at the
time of the execution of said note, pretended to own, and
then and there pretended to have the right to sell and
convey to defendant Cooper; that plaintiff, at and before
the execution of said note, represented to defendant that
he had a valid claim on the public lands, and could and
would sell and convey to defendant Cooper the same, for the
consideration expressed in said note or instrument; that,
relying upon said representations, defendant Cooper,
together with defendant Childs as accommodation maker or
surety, made and delivered said note to plaintiff, and
plaintiff then and there pretended to convey, by quitclaim
deed, said pretended claim to defendant Cooper, as
consideration for said note; that said representations were
known to plaintiff to be wholly false and fraudulent, and
plaintiff did not have a valid, or any, claim at all to any
public lands, and said conveyance was only a pretense, and
no consideration whatever for said note
or instrument; that no other consideration whatever passed
between the parties for the execution and delivery of said
note or instrument, and defendants allege, therefore, that
there was no consideration at all. Wherefore, defendants
pray that they may go hence without day, and for
costs."
The
points made for a reversal are: First, that the complaint
does not state facts sufficient to constitute a cause of
action; second, that the amended answer states a complete
defense; and, third, that the court erred in refusing leave
to file a second amended answer. The objection made to the
complaint is that it appears upon the face of the note, which
is set forth in full, that its only consideration was a claim
on the public lands. The amended answer also states that such
was the consideration of the note, so that the same question
is presented by the two pleadings. The contention is that, by
the terms of section 2263 of the Revised Statutes of the
United States, no...
