Dewey v. Saffer
| Decision Date | 07 February 1916 |
| Docket Number | 8520. |
| Citation | 60 Colo. 598,155 P. 317 |
| Parties | DEWEY et al. v. SAFFER. |
| Court | Colorado Supreme Court |
Error to District Court, Garfield County; John T. Shumate, Judge.
Suit by Andrew Saffer against Jesse C. Dewey, with intervention petition by Frank J. Hess. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions to dismiss the complaint.
C. W Darrow and John L. Noonan, both of Glenwood Springs, for plaintiffs in error.
John E Ethell, of Glenwood Springs, for defendant in error.
On May 13th, 1914, Andrew Saffer, plaintiff below and defendant in error here, began suit against J. C. Dewey, one of the plaintiffs in error, alleging in substance that on November 25th, 1912, Dewey executed to Saffer his promissory note for $500.00, due in three months, with interest at eight per cent. per annum, such interest having been paid to May 25th 1914; that on said 25th day of November, Dewey purchased of one Eugene Blowers certain livery stock for $1,500.00, evidenced by bill of sale from Blowers to Dewey; that to secure payment to the plaintiff of the $500.00 note the bill of sale from Blowers to Dewey for the livery stock described therein was forthwith assigned and delivered by the latter to Saffer; that it was understood that the bill of sale in the hands of Saffer was to operate only as a chattel mortgage lien on the property therein described to secure the payment of the indebtedness; that if Dewey should pay the indebtedness at the time and in the manner agreed upon in the note, then the bill of sale should be null and void. The prayer was that the bill of sale be adjudged a chattel mortgage and a first lien upon the property for the amount of the debt and interest, and for costs. The defendant Dewey interposed a general demurrer to the complaint, which was on August 27th, 1914, overruled, to which order objection was made and exception reserved.
We think the complaint fails to state facts sufficient to entitle plaintiff to the relief sought, and which by the decree of court was given. It will be observed that this suit was brought some eighteen months after the alleged assignment of the bill of sale in question. There is no averment in the complaint that at the time of the commencement of the suit Dewey owned the property described in the bill of sale. In order to impress this bill of sale as an equitable mortgage upon the property, if it could be done at all, it is clear that an averment of ownership in Dewey at that time was an absolute essential to make the complaint sufficient. And in order to warrant a decree such as was sought in this case the averments should have been direct, positive and certain that Dewey undertook and agreed that the bill of sale so assigned should constitute a lien on the property, and that the property was in fact pledged as security for the payment of the debt. No such definite and certain averments are made. Upon this point the most that is alleged...
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Miller v. Tallent
...debt evidenced by note and interest held not to state facts sufficient to entitle plaintiff to the relief sought.—Dewey v. Saffer, 155 Pac. 317, 60 Colo. 598. (Fla.1902) An instruction that if it was verbally agreed between the parties, at the time of the execution of an absolute bill of sa......