Rio Grande Extension Co. v. Coby

• Decision Date: 01 April 1884
• Citation: 7 Colo. 299,3 P. 481
• Parties: RIO GRANDE EXTENSION CO. v. COBY.
• Court: Colorado Supreme Court

3 P. 481

7 Colo. 299

RIO GRANDE EXTENSION CO. v. COBY.

Supreme Court of Colorado

April 1, 1884

Appeal from county court of El Paso county.

Wm. Harrison, L. M. Cuthbert, and L K. Bass, for appellant.

J B. Cochran, for appellee.

HELM J.

This action was brought against the extension company by appellee as assignee and owner of five several instruments of writing known as time-checks. The checks, and also certain separate orders relating thereto, were received in evidence over the objections of appellant. There is no claim or proof that these orders were ever presented to or accepted by the company; the judgment, therefore, cannot rest upon them, as no liability on its part thereunder was shown. It must be sustained, if at all, exclusively by the time-checks. They are alike in form, and the following sample is all that need be given here:

COLORADO SPRINGS, COLO., July 17, 1880. Time-check. Paymaster Rio Grande Extension Company: Not negotiable. Due Thos. Flinn, for labor in month of Payable July,188-, as on regular pay laborer, twelve days, at $1.25 per day, ............. $15.00 day. Deduct for board, ...................................... 3 05 ------------ Balance due, ....................................... $11 95 T.S BLACKBURN, Foreman. Approved: F. T. GRISWOLD. Endorsements: his THOS. X FLYNN. mark. Witness: E. W. ROSENBERG.

These checks purport to be written acknowledgments of indebtedness executed upon a settlement with the laborers to whom they were given. They are apparently made for the information and guidance of the paymaster of the company; and, therefore, we might, perhaps, infer that they were intended to represent obligations of the company. Each acknowledges a definite sum of money to be due from some one to a payee named therein, and is payable at a time certain; were there no restricting words, they would therefore be clearly negotiable under our laws--(chapter 9, Gen. St.--;) the indorsement of the payee's name upon the same is the proper mode of transferring the ownership of such instruments. But the words 'not negotiable' appear written or printed across the end of these checks. It is unnecessary for us to consider whether the maker has power to take away by such declaration the attributes of negotiability bestowed upon the instruments by statute; for in the first place they still remain assignable thereunder; and, secondly, they are choses in action, and, as such, the ownership might be transferred by assignment independent of statute. Under our practice--(see section 3 of the Code of Civil Procedure)--the equitable rule relating thereto prevails, and the action should be in the name of the purchaser and assignee, because he is the owner and real party in interest. The principal effect of destroying the negotiability of these instruments is simply to render them subject in suit by the assignee to all defenses existing prior to notice of the assignment that might have been interposed to an action by the original payee. Pom. Rem. & Rem. Rights, § 157; Combes v. Chandler, 33 Ohio St. 178; Moore v. Metropolitan Bank, 55 N.Y. 41; 1 Pars. Cont. 227.

Objection is made that no acceptance of the time-checks by the company was proven, but if a recovery can be sustained upon them at all, it is because they are acknowledgments of indebtedness made by the company itself; they are more in the nature of due-bills than orders or bills of exchange, and no acceptance is necessary. This would be equally true could they be regarded as the drafts of an agent of the company upon another agent. Such drafts are analogous to the case where an individual draws upon himself, and may be treated either as accepted bills or as promissory notes. 1 Daniell, Neg. Inst.§ 424. The word 'approved,' over the signature of one Griswold, appears written thereon. It may be that Griswold was an agent of the company, and that...