Lamar Bldg. & Loan Ass'n v. Truax

• Decision Date: 07 May 1934
• Docket Number: 13263.
• Citation: 33 P.2d 978,95 Colo. 77
• Court: Colorado Supreme Court
• Parties: LAMAR BUILDING & LOAN ASS'N v. TRUAX et al.

33 P.2d 978

95 Colo. 77

LAMAR BUILDING & LOAN ASS'N v. TRUAX et al.

No. 13263.

Supreme Court of Colorado, En Banc.

May 7, 1934

Rehearing Denied June 12, 1934.

Error to District Court, Baca County; A. F. Hollenbeck, Judge.

Action by the Lamar Building & Loan Association against Margaret Truax and Cora June Reschke and the latter's husband, and another, with a cross-complaint by the lastnamed defendant and husband. The case was dismissed, and plaintiff brings error.

Reversed and remanded.

BUTLER CAMPBELL, and HILLARD, JJ., dissenting.

Goodale & Horn, of Lamar, for plaintiff in error.

Granby R. Hillyer, of Lamar, and Granby Hillyer, of Denver, for defendants in error.

BOUCK Justice.

This is an action brought in the district court by the plaintiff in error, the Lamar Building & Loan Association, against Cora June Reschke and others, primarily to foreclose a lien claimed on her land by virtue of a deed of trust given by her grantor. Findings went in favor of Mrs. Reschke, and the case was dismissed at the costs of the plaintiff association, which is here asking a reversal. Mrs. Reschke will be spoken of in this opinion as if she were the sole defendant, since the other defendants have no interest in the controversy Before us.

The defendant had received her conveyance expressly subject to the incumbrance. Her answer admitted the validity of the deed of trust, but alleged that she had piad in full the indebtedness thereby secured. On the other hand, her counsel claims that the answer pleaded estoppel, and the trial court seems to have taken the view that, notwithstanding the language in the answer, estoppel--and not payment--was the defense tendered.

1. Counsel for the plaintiff made seasonable objection to the alleged pleading of estoppel as wholly insufficient. This insufficiency is clearly apparent, there being in the answer no statement whatever that the representations now claimed to form the basis of an alleged estoppel were made with the intention that they should be acted upon. Beals v Cone, 27 Colo. 473, 480, 62 P. 948, 950, 83 Am.St.Rep. 92. Indeed, there is no allegation that such representations were false, nor does the pleading even hint that they were false. The objection was consistently repeated throught the trial. To all evidence of alleged estoppel offered by the defendant, the plaintiff expressly objected on the ground that it was not within the issue. The trial court was not misled as to the ground of attack, for this was open, direct, and unmistakably persistent. That attack was made at the earliest possible moment.

Thus undoubtedly, as we have seen, the answer does not contain a sufficient pleading of estoppel. If that is true now, it was true when the trial judge was called upon to rule on the objections. These should have been sustained. Had they been sustained, the judgment would have had to go against the defendant unless she had asked and obtained leave to amend the answer. Amendment is the defensive weapon offered to him whose defective pleading is assailed. However, at no time did the defendant ask for leave to amend. It is to be noted that the alleged defense of estoppel appeared in the same part of the answer as the defense of payment, and not as a separate defense. There is ostensibly but a single affirmative defense. Counsel for plaintiff could therefore not have successfully raised by demurrer any objection to a supposed insufficiency, since the allegation of payment made the answer absolutely good and complete on its face, as an adequate confession and avoidance. In this respect the pleading differs from the positively defective complaint in Musgrove v. Brown, 93 Colo. 559, 27 P.2d 590, where one might reasonably have expected an early sufficiency test by demurrer.

In the present case, on the contrary, the state of the pleadings not only did not indicate the propriety of any demurrer, but did not suggest the slightest desirability of any motion from the plaintiff. Compare McCrimmon v. Raymond, 77 Colo. 81, 84, 234 P. 1058, 1059. Nothing about the alleged statement of estoppel makes that statement more than mere matter of inducement, introduction, or harmless surplusage, lacking (as it does) what are universally considered essential elements of estoppel. The statement is as easily explainable on the ground of being a purely evidentiary statement of the amount actually due, as it is on the ground that it was intended as a statement of estoppel when this statement is palpably defective as such. The former explanation is the more likely and reasonable, in fact, because the statement is immediately followed, not by an allegation of the missing elements of estoppel, but by the direct and unambiguous claim that the amount actually due was paid by the defendant. We cannot disregard one admittedly well-pleaded defense, and exercise our imagination to supply missing constituents of another defense the utter inadequacy of which has in every possible way been brought to the attention of trial court and defendant's counsel. The duty of bringing the unsatisfactory pleading up to the conceded standard fell upon the defendant, who would have had her remedy by way of amendment if she had chosen to use it and had made the requisite showing. Compare McCrimmon v. Raymond, supra. Our Code system was intended to simplify pleading and procedure, but not to encourage deliberate and defiant abandonment of sound principles of legal statement. Nor does it contemplate that a court shall accept a plainly defective statement, affirmatively objected to on the ground of its defectiveness, and ignore a wholly adequate and correct statement of a proper defense with which the former is, as in this case, hopelessly irreconcilable. The points we make will be best substantiated by quoting from the answer (verbatim except that, for convenience, the word 'defendants' and the corresponding verbs have been changed to the singular):

'That on or about, to-wit: April 27, 1928, the defendant * * * purchased the property * * * from * * * Margaret Truax at and for an agreed purchase price, and that prior to the payment of the said purchase price * * * the defendant * * * having been advised and having knowledge of the existence of the note and trust deed * * * consulted the plaintiff herein with reference to the amount of the indebtedness remaining due and unpaid which said plaintiff held against the property * * * and that the defendant * * * further consulted the plaintiff with reference to the amounts which had therefore been paid on said note and trust deed by the said Margaret Truax and with reference to the balance due thereunder, and that at said time the defendant * * * was informed and advised by the plaintiff herein, its agents and employees that there remained due on account of the said note and trust deed a balance of $247.00, which said sum was due and payable in monthly instalments of $19.00 each and that there remained 13 of such instalments yet to be paid on account of said balance due and owing under the said note and trust deed, and that thereafter, and placing full and implicit reliance upon the statements and representations so made to them by the plaintiff herein, the defendant * * * paid to the said Margaret Truax the purchase price theretofore agreed upon between them for the said property, less the said sum of $247.00.

'That the defendant * * * has paid to the plaintiff herein on account of the balance due and owing under said note and trust deed the sum of $274.00 which said sum is in excess of the amount due and owing under said note and trust deed and is in excess of the amount which the plaintiff had * * * advised and informed the defendant * * * remained due and payable under such note and trust deed.

'That * * * the defendant * * * had no means of ascertaining the correct amount due and payable under said note and trust deed at the time that they so purchased the property * * * other than by consulting plaintiff herein, and that the defendant * * * did so consult the plaintiff herein and was informed by the said plaintiff of the balance due and payable on said note and trust deed, as is hereinBefore alleged, and that the defendant * * * placing full and complete reliance upon the statements and representations so made to them by the plaintiff * * * purchased the property * * * relying upon the truth and correctness of the statements so made * * * by the plaintiff.

'That the defendant * * * has fully paid and satisfied the legal and correct amount due under the note and trust deed set out in the complaint herein, and that said note is fully paid and satisfied and the trust deed is therefore null and void and should be released and discharged.'

In view of the failure to amend the answer thus Before us, so as to make it supply manifest defects if it were intended to rely upon estoppel, the assumption is naturally justified that what here purports to be but one ground of defense is the well-pleaded defense of payment. It would be difficult, if not impossible, to account for the direct, sworn statement of payment of the amount due, if that were not the proper interpretation. The plaintiff had a right to make such an assumption. Objection was made to every effort of the defendant to introduce evidence which would have been admissible if estoppel had been properly pleaded, as it was not; and the defendant, though warned by proper objections, failed and refused to profit thereby. At no time did counsel for the plaintiff cease objecting to any such attempted deviation from the defense of payment, squarely presented by the answer, to that of estoppel, not presented adequately or at all.

One of the most important duties of a trial court is to see that the trial proceeds upon the...