BELL
J.
The
First National Bank of Granada, plaintiff in error and
plaintiff below, hereinafter called plaintiff, instituted
this action against A.P. Martin, defendant in error and
defendant below, hereinafter called defendant, to recover of
him the sum of $1,555.22, with interest, the amount of two
certain promissory notes, dated December 12, 1911, signed by
him, and payable six months after the date thereof to its
order. A defense of no consideration was interposed, and upon
a trial to the court with a jury, a verdict was returned in
favor of defendant, and judgment was entered accordingly.
The
answer, for a first defense, contains a general denial, and
for a second defense, which, with the exception of the first
paragraph thereof, is denied by replication, alleges as
follows:
"That at and for a long time prior to the
12th day of December, 1911, one J.L. Mayfield was an officer
and cashier of the First National Bank of Granada, Colo., the
plaintiff in this suit; that at and for a long time prior to
said above-mentioned date the defendant herein was the agent
of said Mayfield, duly selected and constituted by him for
the purpose of disposing of certain real estate, either by
sale or exchange, then owned by said Mayfield in Colorado
Springs, Colorado City, and the immediate vicinity thereof
in El Paso county, Colo., and that defendant then resided in
said city of Colorado Springs.
"That
for some time immediately preceding and at said
above-mentioned date, negotiations were about to be
consummated by defendant or agent for said Mayfield for the
sale of certain property so owned as aforesaid, but on
account of delays incident to the final closing, or
anticipated closing, of a deal wherein the said Mayfield, if
the consideration therefor was paid, would receive the sum of
approximately $1,600, the said Mayfield on or about December
12, 1911, came to Colorado Springs and informed the defendant
that he could not await the closing of any real estate deal
that he wanted the use of the money he was to receive
therefrom at once, and said Mayfield then informed this
defendant that he had arranged with plaintiff, said First
National Bank of Granada, of which he was the cashier, that
if defendant would execute and deliver to Mayfield a note
payable in form to said bank, as payee, that he, the said
Mayfield, as its cashier, had arranged with said bank that
said obligation was to be taken by it as the obligation of
Mayfield, and that he would pay and become personally
responsible for the payment of said note upon its maturity
and that said bank agreed to take said note, not as the
obligation of this defendant, but as the obligation of
Mayfield, and would look to him solely for the payment of the
same in consideration of the said Mayfield having agreed with
said bank to turn over to it or apply towards the payment thereof all or any portion of the proceeds
from the sale of the property so belonging as aforesaid to
the said Mayfield; that said Mayfield further represented and
stated to defendant at said time that, on account of being
cashier of said bank, it was not allowable under the law for
said bank to loan money to its officers on unsecured
obligations, and that he had arranged with his said bank that
as a matter of form the notes would have to be made and
signed in the manner suggested by him, and that upon delivery
to the bank by the said Mayfield, the latter would withdraw
the money thereon; that defendant, upon such information, and
in consideration of the representations so made as aforesaid,
agreed to sign the said notes, whereupon the said Mayfield
suggested making the same in two different notes, and he then
and there, and on the date aforesaid, drew up the two
promissory notes as set forth in the plaintiff's
complaint and upon the representations, so made as aforesaid,
by said Mayfield to defendant, and in reliance upon the same,
defendant was induced to and thereupon did sign and deliver
to the said Mayfield the aforesaid notes; that but for said
representations so made by Mayfield, this defendant would not
have signed the said notes.
"Defendant
further alleges that he received no consideration, either
money or thing of value, in any manner or form for the
signing of the said notes, and that in no manner or form did
he in any way deal directly with or have negotiations with
the said plaintiff, save and except as above recited; that no
consideration was ever paid to or received by this defendant
for the signing of said notes, either from the said bank or
any one in its behalf, or from the said Mayfield or any one
in his behalf, or at all; that said Mayfield was the agent of
and as its cashier acted for the said bank in all aforesaid
negotiations, and as such had full authority to transact the
business of said bank, and the said bank, the plaintiff
herein, received the said notes from the said Mayfield with
knowledge of the manner, as aforesaid, in
which the same had been procured and with the understanding
and agreement, as aforesaid, with its said agent and cashier,
that said notes were received by it as the obligation of, and
that it would look solely to, the said Mayfield for the
payment thereof, and not to this defendant, and that it did
not take said notes as the obligations of the defendant, well
knowing that this defendant had received no consideration
whatever for the signing of the same."
Much
evidence in respect to the real estate operations between
Mayfield and defendant was introduced by both parties to the
action, which merely raised an issue as to whether
or not a certain deed made and delivered by Mayfield and his
wife to defendant for a certain property on Pikes Peak
avenue, Colorado Springs, constituted, under the attending
circumstances of the transaction, a good, valid, and
effectual conveyance to defendant of the property therein
described, and operated as a good and valid consideration for
the giving of the original note, of which those in suit are
renewals. This evidence does not assist in a proper
determination of the case, except to show the transaction out
of which the notes sued upon originated, and further
consideration of it need not be given, as the principal and
controlling question for review is whether or not the
plaintiff bank is bound by the knowledge had by Mayfield, its
cashier, of the facts attending the making and accepting of
the original note, from which the action arises.
It
appears that in the course of the real estate dealings
between Mayfield and defendant, a deed to the Pikes Peak
property hereinbefore mentioned was executed and delivered to
defendant, and it was understood between them that this
property was to realize for Mayfield the sum of $1,250. As
hereinbefore stated, it is a disputed question, which need
not be decided, as...
