Kiskadden v. Allen

• Decision Date: 29 February 1884
• Citation: 7 Colo. 206,3 P. 221
• Court: Colorado Supreme Court
• Parties: KISKADDEN v. ALLEN.

3 P. 221

7 Colo. 206

KISKADDEN v. ALLEN.

Supreme Court of Colorado

February 29, 1884

Appeal from county court of Arapahoe county.

J H. Brown, for appellant.

Brown & Putnam, for appellee.

STONE J.

The action in the court below was by appellee against appellant upon the following instrument, to-wit:

'284.

DENVER COLORADO, Jan. 12, 1882.

'On or before March 12, 1882, I promise to pay to the order of J O. Allen two hundred and eighty-four dollars, at the City National Bank, with interest, ten per cent. per annum, value received. This note becomes due and payable when (if before March 12, 1882) Allen, Burke & Co. shall dispose of a part or all their interest in the New York hotel, or when the interest of M. C. Burke may be sold or disposed of.

[Signed]

'M. C. BURKE.'

And indorsed, 'WILLIAM KISKADDEN.'

Appellee got judgment for $298.25, which judgment the appellant, Kiskadden, asks to have reviewed on the grounds that-- First, the instrument sued on is not a promissory note; second, that there was no consideration for the signing by appellant; third, that appellant was discharged by merger of the contract in a prior judgment in favor of appellee against Burke; and, fourth, that appellant was merely a surety, and was discharged by the conduct of appellee.

Upon the first ground it is argued that the instrument is not payable at a time certain, and that it is not payable at all events. We think these objections are opposed to a fair construction of the instrument. The body of the obligation is a definite promise to pay at a certain time; it is in the usual form of an ordinary promissory note. The words appended to the body of the note provide that if the interest of Allen, Burke & Co., or that of Burke alone, in a certain hotel, shall be sold before the date of maturity of the note, then the note shall become due and payable upon the happening of the event of such sale. This was a contingency which might or might not happen, but whether it happened or not, the note, by express terms, became payable upon a certain day mentioned. This condition, therefore, if given the meaning it fairly imports, does not affect the character of the instrument as a promissory note.

As to the objection of want of consideration, this is not well taken, since the testimony shows, without contradiction, that the defendant indorsed the note at the time it was made, and before delivering to the payee, and with the clear understanding that the note would not be accepted unless so signed by the defendant, and this court has held that when a promissory note, made payable to a particular person, or order, as in this case, is first indorsed by a third person such third person is held to be an original promisor, guarantor, or indorser, according to the nature of the...