Heaton v. Myers

• Decision Date: 01 April 1878
• Citation: 4 Colo. 59
• Parties: HEATON v. MYERS.
• Court: Colorado Supreme Court

4 Colo. 59

HEATON v. MYERS.

Supreme Court of Colorado

April, 1878

Error to District Court of Gilpin County.

MYERS the defendant in error, brought an action of assumpsit against Heaton, the plaintiff in error, upon the following instrument, which had been assigned to plaintiff after maturity:

'BLACK HAWK, COLORADO, May 19, 1873.

Received of George W. Heaton, President of the Sierra Madre Tunnel Company, five hundred dollars in part payment of the sum of five thousand dollars, on payment of which I hereby covenant to him for and in behalf of said company my (160 a) homestead, situate near Black Hawk, aforesaid, together with the fences, houses, tenements, buildings, horses, wagons tools, water-works, and all and sundry the goods, chattels and property thereon, and I do hereby assign and give over the use and benefit of the said foregoing property, real, personal and mixed, to the said G W. Heaton, or his order, fully, freely and for all purposes as he may will or designate. Witness my hand, this 19th day of May, A. D. 1873.

$500.00.

PETER C. JOHNSON.'

'May 19, 1873.

I, the above-named G. W. Heaton, do acknowledge that four thousand five hundred (4,500) dollars are yet due to P. C. Johnson, who has given me a deed for the above-named properties, on the payment by me of five hundred (500) dollars.

G. W. HEATON.'

The cause was tried to the court, upon the general issue, the only plea remaining in the record. The agreement adverted to in the opinion of the court as having been made subsequent to the foregoing instrument, and which was offered in evidence by the defendant and rejected, is as follows:

'Memorandum.-Whereas, by a warranty deed, recorded at Central City, Gilpin county, Colorado, from Peter C. Johnson to George W. Heaton, on the 27th day of May, A. D. 1873, a certain title, purporting to convey one hundred and sixty acres in section 17, township 3, range 72 west, was, with all the improvements and other property, real and personal thereon, transferred from the said Johnson to the said Heaton, for the consideration of $5,000; and whereas, $500 have actually been paid to the said Johnson by the said Heaton, on his receiving possession of the above from the said Johnson, it is agreed and hereby witnessed between the said parties that the said P. C. Johnson shall prove to the satisfaction of the said Heaton and his counsel the clearness and soundness of the said Johnson's title to the land aforesaid, by all the evidence necessary and possible, and that such proof shall be made before the payment of the next instalment of the purchase-money.

P. C. JOHNSON. [X]

'Delivered, sealed and signed by P. C. Johnson on the 20th day of June, A. D. 1873, at the Sierra Madre Tunnel Company's works, Black Hawk, Colorado, in presence of

JAMES McQUEEN.'

The plaintiff had judgment for $4,920.

Messrs. H. M. & W. TELLER, for plaintiff in error.

Mr. ALVIN MARSH, for defendant in error.

ELBERT J.

The second plea of the defendant below, denying the execution and delivery of the note declared on, had no force or effect, as it was not verified as required by statute. In an action where it was properly pleadable at common law as the general issue, the plea of non est factum would be good, though not verified, and under it, the defendant might insist on any legal defense that he could have done at common law, except denying or disproving the execution of the instrument declared on. Longley et al. v. Norrall, 1 Scam. 389.

But this was an action of assumpsit. The general issue, non assumpsit, was pleaded, and the second plea, which in effect, though not in form, is a plea of non est factum, had no place nor served any purpose, so long as it was unverified.

The demurrer to the third plea was also properly sustained. It, in substance, alleges, that the defendant Heaton executed and delivered the note declared on, to Johnson, the original payee, on behalf of the Sierra Madre Tunnel Company, and as the agent of said company, 'and that it was not made or intended to be an acknowledgment of any debt due from the defendant to said Johnson.'

Whether the principal or agent is the party liable upon a note or bill of exchange must be determined from the instrument itself.

Oral evidence is not admissible in the case of negotiable paper to charge an unnamed principal. In the expressive language of the authorities, a note or bill of exchange, 'is a courier, without luggage, whose countenance is its passport.' 1 Daniel on Neg. Inst., s 303; Byles on Bills, 37* (6th ed.); Story on Agency, s 154, p. 199 (n. 5).

The rule is, as stated by Mr. Story, 'if it can upon the whole instrument be collected, that the true object and intent of it are to bind the principal, and not to bind the agent, courts of justice will adopt that construction of it, however informally it may be expressed.'

The due bill in this case is a personal acknowledgment of indebtedness to Johnson by the defendant, and there is nothing to disclose that he acted as agent for or on behalf of a principal.

If the due bill be construed in connection with the writing which precedes it, the words, 'president of the Sierra Madre Tunnel Company,' are but descriptio personoe, and would not bind the company as principal. There is nothing indicating that the due bill was made in execution of an agency.

The fourth plea was twice amended. As first amended it was demurred to, and the demurrer sustained...