Pallister v. Camenisch
| Decision Date | 08 January 1912 |
| Citation | 21 Colo.App. 79,121 P. 958 |
| Parties | PALLISTER v. CAMENISCH. |
| Court | Colorado Court of Appeals |
Rehearing Denied March 11, 1912
Appeal from District Court, Denver County; Booth Malone, Judge.
Action by Jacob Camenisch against J.A. Pallister. From a judgment for plaintiff, defendant appeals. Affirmed.
H.H Hindry and Arthur F. Friedman, for appellant.
H.E Luthe, for appellee.
The facts in this case, so far as we deem them important, are substantially as follows: Pallister, the appellant, defendant below, purchased a dairy from Camenisch, appellee, plaintiff below, inducing Camenisch to accept as part payment for said dairy a promissory note for $2,500, payable to Pallister and signed by Benjamin W. Ladd and S.D. Moss. The note was taken by Camenisch at its face value, with the accrued interest and Pallister was given credit on the purchase price of the dairy for the amount. The note was indorsed by Pallister, "without recourse," and delivered by him to Camenisch. Up to this point the facts are undisputed. On substantially all other questions of fact the evidence is in sharp conflict. Appellee contends that appellant represented that Moss was a man of large means, abundantly solvent, and owned valuable real property in this city, and in Ottumwa, Iowa, where appellant had known Moss for many years. In his complaint appellee makes these statements as to Moss' financial responsibility, and their alleged falsity, the basis of a suit in damages against appellant, said complaint containing the usual allegations necessary to a statement of a cause of action in deceit. The answer is a general denial. At the trial there appeared to be no dispute whatever as to the insolvency of Ladd and Moss, the makers of the note, both at the time the same was transferred to appellee, and at the time of the bringing of this action. Plaintiff introduced testimony that clearly established the insolvency of the makers of the note, while the defendant made no effort whatever to contradict the same. The briefs are limited to the discussion of two questions, and we shall accordingly limit our consideration of the case. The first cause of action (the only one we shall consider) is based on willful or actual fraud. In it plaintiff charges defendant with liability, because of willful and fraudulent misrepresentations made by the defendant, and deceit practiced by him upon the plaintiff.
Counsel for appellant in their brief contend, first, that since Pallister indorsed the note, "without recourse," he thereby made it plain that he would not be responsible for its payment; that such an indorsement constituted a written contract, and measured his full obligation, or, rather worked his release from all further obligations in the premises. In other words, it is contended that in writing he declined to be bound in any way for and on account of the note. Hence they say to attempt to hold him liable by reason of any oral statement that he may have made at or before the date of the transfer would be to vary the terms of a written contract by oral agreement. Appellant further contends that he ought not to be held liable for any misrepresentations he may have made to appellee, for the reason, as he says, that appellee having undertaken to investigate and ascertain for himself the financial condition of the maker of the note, and no artifice being used to prevent such investigation from being full and complete, the conclusive presumption is that appellee relied upon the result of his own investigations rather than upon appellant's statements. Neither of these arguments impress us as being sound under the law applicable to this case, and the facts disclosed on the trial. In appellant's brief appears the following: "That his (appellant's) indorsement of a negotiable instrument, whether the indorsement be general or qualified, is a full and complete contract with full and complete agreements as to the covenants of the indorser, and is not subject to be varied or attacked by parol evidence." This statement, and the authorities cited in support thereof, have no application to the case at bar. If appellee had sued appellant as indorser of the note, or by reason of the fact that he had indorsed it, then the statement quoted, and the authorities cited, would be applicable. To illustrate: Had Moss' financial condition at the time the alleged false representations were made been substantially as represented by appellant, but thereafter, through adverse circumstances, he had lost his fortune and been reduced to the state financially in which he really was at the time these representations were made, or had Moss refused, through dilatoriness or from other ulterior motives, to pay the note when it became due, the indorsement of appellant, "without recourse," would have barred recovery against him. Under the state of facts assumed here by way of illustration, the contention of appellant and his authorities would be sound. But we have no such case before us. It may be conceded that had appellant, before or at the time of indorsing the note, said to appellee: "Now, I am going to indorse this note, 'without recourse,' but, nevertheless, if the defendant does not promptly meet his obligation and take up the note at maturity, I will, notwithstanding I have indorsed the note, 'without recourse,' see that you are paid"--the appellant could not have been held liable by reason of such oral undertaking or statement, but it by no means follows from...
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