Godsmark v. Bennett's Estate

• Decision Date: 06 January 1912
• Parties: GODSMARK v. BENNETT'S ESTATE.
• Court: Colorado Supreme Court

120 P. 151

52 Colo. 198

GODSMARK v. BENNETT'S ESTATE.

Supreme Court of Colorado

January 6, 1912

Error to District Court, Routt County; John T. Shumate, Judge.

Claim by Alice L. Godsmark against the estate of Jenny Bennett. From a judgment of the district court affirming a judgment of the county court partly disallowing the claim, claimant brings error. Affirmed.

T. Webster Hoyt, for plaintiff in error.

Joseph K. Bozard and Wells B. McClelland, for defendant in error.

BAILEY J.

The plaintiff in error, Alice L. Godsmark, was a niece of Jenny Bennett. On November 3, 1902, Mrs. Bennett borrowed of her niece $1,000, for which she gave her promissory note, of which the following is a copy:

'$1,000.00. Steamboat Springs, Colo. November 3d, 1902. One year after date, I promise to pay Alice L. Godsmark or order One Thousand and no/100 Dollars, with interest at six per cent per annum from date until due, payable at the office of Milner & Co., Bankers, Steamboat Springs, Colorado. If not paid when due to bear interest at two per cent. per month until paid.

'It is also stipulated that should this note be collected by an attorney (whether by suit or otherwise) ten per cent. shall be allowed the holder as attorney's fees.

'[Signed] Jenny Bennett.'

This note was written on one of the regular forms of Milner & Co. bankers, in which the provision for two per cent. per month interest after due was printed. It is undisputed that interest on this note to November 3, 1904, one year after it matured, at the rate of six per cent. per annum was paid to and accepted by Mrs. Godsmark. Payment of the note was secured by a trust deed upon real estate. In the spring of 1906 Mrs. Bennett fell sick, and died the following June. The estate was left in the hands of Dr. B. L. Jefferson, as executor of her will, Mrs. Godsmark not being remembered therein.

In September, 1906, Mrs. Godsmark filed a claim against the estate on account of this note, for $1,450, of which $450 was interest at the rate of twenty-four per cent. a year from November 3, 1904. On June 24, 1907, the probate court of Routt county allowed $1,158.35, which includes the principal of the note and interest at the rate of six per cent. from November 3, 1904, to that date, and disallowed all interest in excess of six per cent. per annum. On July 9, 1907, a claim of ten per cent. of this allowance as an attorney fee was filed. The $1,158.35 was paid by the executor and accepted by Mrs. Godsmark. But she prayed, was allowed and perfected an appeal to the Routt County district court from the order disallowing extra interest. On July 29, 1907, the county court disallowed the claim for attorney fee. No exception was taken to this order and judgment, no appeal was prayed, none was granted and none perfected, although upon the other appeal the whole record relating to both claims was certified to the district court. It was there determined that no appeal had been taken from the disallowance of the claim for attorney fee, no bond having been ordered or given to effect it. The bond on appeal from the disallowance of extra interest was dated prior to the entry of the order and judgment disallowing the claim for an attorney fee. No other appeal bond was filed. That no appeal from the particular disallowance is taken is therefore clear and upon this review nothing will be considered except the question whether plaintiff in error shall have interest on the note at the rate of twenty-four per cent. a year, from November 3, 1904, the district court having affirmed the judgment of the county court, disallowing the claim for interest in excess of six per cent.

Two contentions are here for consideration. One is that, if the two per cent. per month interest clause was in fact a part of the contract, Mrs. Godsmark waived her right to recover it by voluntarily accepting interest at the rate of six per cent. a year after the note matured. The other is, that the proofs show and establish that the two per cent. per month interest clause is not in fact a part of the contract actually entered into between the plaintiff in error and the decedent.

When Mrs. Godsmark accepted the interest on the note at the rate of six per cent. a year, after the paper became due, and permitted the money to be retained by her aunt, that seems to imply that the loan should continue at the original rate of interest, and must have been so understood by Mrs. Bennett. But Mrs. Godsmark not only did this, she thereafter repeatedly stated that she was permitting her aunt to have money at six per cent. per annum when she could get more. This is made clear from the testimony of Mrs. Green and Mrs. Becker, also nieces of Mrs. Bennett.

But it is contended by counsel for plaintiff in error that Mrs. Godsmark, at those times, did not know that this provision was in the note, and therefore could not have waived it. The testimony shows that Mrs. Godsmark was in personal possession of the note and deposited it in the Colorado National Bank, Denver. She had ample opportunity to examine and learn the contents of the note. If she did not know its provisions, she ought to have known them. It...