First Nat. Bank of Center v. Navins

• Decision Date: 05 December 1921
• Docket Number: 9938.
• Citation: 70 Colo. 491,202 P. 702
• Parties: FIRST NAT. BANK OF CENTER v. NAVINS.
• Court: Colorado Supreme Court

202 P. 702

70 Colo. 491

FIRST NAT. BANK OF CENTER v. NAVINS.

No. 9938.

Supreme Court of Colorado

December 5, 1921

Department 1.

Error to Rio Grande County Court; James W. White, Judge.

Action by the First National Bank of Center against J. J. Navins. Judgment for defendant, and plaintiff brings error.

Affirmed.

James P. Veerkamp, of Monte Vista, and Bartels &amp Blood, of Denver, for plaintiff in error.

Jesse Stephenson, of Monte Vista, for defendant in error.

ALLEN J.

This is an action by the payee against the maker of a promissory note. The defendant answered, in substance, that the note was given in renewal of a former note, and that such previous instrument was procured by the fraud of plaintiff's agent, acting in conjunction with others. A trial to a jury resulted in a verdict for defendant. The plaintiff brings the cause here for review.

Error is assigned to the trial court's giving to the jury defendant's requested instruction No. 1. That instruction reads as follows:

'You are further instructed that the fact that the defendant renewed the original note is a circumstance going to show that he affirmed the original contract, and thereby waived his right to defend on account of fraud; but he cannot be held to have waived his defense, unless he renewed the note with the intention to confirm the contract and to abandon his right to avail himself of the defense of fraud.'

The instruction is correct, as an abstract proposition of law. In 20 Cyc. 93, it is said:

'That acts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with intention clearly manifested to abide by the contract and waiving all right to recover for the deception.'

The above is quoted in Ponder v. Altura Co., 57 Colo. 519, 529, 143 P. 570.

The instruction is assailed, however, as inappropriate under the evidence, and upon the theory that the evidence in this case is such that as a matter of law it must be held that the defendant, in giving the renewal note, did intend to waive the fraud.

It is fairly shown by the plaintiff in error that the defendant gave the renewal note with knowledge of the fraud by which the original note was procured. If this was all the evidence relevant to the matter, the instruction might be unnecessary, and the plaintiff might prevail, under the general rule that the defense of fraud is cured by renewal, mentioned in 8 C.J. 444. There is evidence, however, warranting the instruction. As to the circumstances surrounding the making of the renewal note, the plaintiff's agent testified, among other things, as follows:

'I told him [the defendant maker] the note would have to be renewed or we would sue on it. He renewed the note.'

Concerning the same occasion and transaction, the defendant testified as follows:

'When he wanted me to renew it, * * * I could hardly stand up in the room. I was affected with a

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