Divine v. George

• Decision Date: 03 July 1922
• Docket Number: 9985.
• Citation: 72 Colo. 17,209 P. 507
• Parties: DIVINE v. GEORGE.
• Court: Colorado Supreme Court

209 P. 507

72 Colo. 17

DIVINE v. GEORGE.

No. 9985.

Supreme Court of Colorado, En Banc.

July 3, 1922

Rehearing Denied Oct. 2, 1922.

Error to District Court, Mesa County; Thomas J. Black, Judge.

Action by Harry C. George against Dr. J. H. Divine. Judgment for plaintiff, and defendant brings error.

Reversed.

McMullin & Sternberg, of Grand Junction, and William H. Gabbert, of Denver, for plaintiff in error.

Straud M. Logan, of Grand Junction, S. Harrison White, of Denver and Burgess & Bothwell, of Grand Junction, for defendant in error.

TELLER J.

Plaintiff in error was sued by the defendant in error, as trustee, on a promissory note given to the Union Trading Company by plaintiff in error in renewal of a former note to the same payee. This is the note which was involved in the case of Divine v. George, 63 Colo. 341, 166 P. 242, where the essential facts are fully set forth. It is sufficient to say here that the answer set up that the note was given for stock in the trading company upon condition that it should establish a specified kind of a store at Palisade, with which condition the company never complied. It was stipulated that the plaintiff in the action was not a holder in due course, and that all defenses which could be interposed against the payee could be interposed against him.

From the testimony of the defendant in the cause it appeared that about the time of the execution of the renewal note, Dr Divine asked Campbell, manager of the company, about the store, and was told that it would have a large stock in a few days. Thereupon defendant executed the renewal note. It appears that the company never did have such stock, and never had the kind of a store which it had promised to establish.

The plaintiff's position was that the defendant had waived the conditions under which the note was given by executing a renewal of it; that he might have discovered that the store was not such as was prescribed when the note was made by making an examination of the store. It is suggested that he could have visited the various floors and ascertained for himself what quantity of stock there was on the shelves. In accordance with this contention is instruction No. 2, to which defendant seasonably objected. Said instruction reads as follows:

'The court instructs the jury that, although it is claimed by the defendant that it was a condition to the subscription of the defendant that the Union Trading Company

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