Salazar v. Taylor

• Decision Date: 19 June 1893
• Citation: 18 Colo. 538,33 P. 369
• Parties: SALAZAR v. TAYLOR.
• Court: Colorado Supreme Court

33 P. 369

18 Colo. 538

SALAZAR v. TAYLOR.

Supreme Court of Colorado

June 19, 1893

Appeal from district court, Las Animas county.

Action on promissory notes by A. H. Taylor, administrator, against Jose A. Salazar. Plaintiff had judgment, and defendant appeals. Affirmed.

Syllabus by the Court

1. The decision of the trial court on the challenge of a juror for cause is not ground for reversal, unless manifestly erroneous, and prejudicial to the party complaining of it.

2. Where a party suing as administrator produces evidence of the death of his intestate, and of the issuance of letters of administration, as alleged, and no evidence is offered to the contrary, the court is justified in considering the representative capacity of plaintiff as an established fact.

3. The averment of a promise by defendant, under his hand, is equivalent to an averment of a promise in writing signed by defendant. Insufficient averments in a complaint may be aided by the averments of the answer. In a suit upon a promissory note it is not necessary to aver a consideration for the promise of the maker.

4. A note made payable with interest without specifying the rate or the time from which the interest is to be computed carries interest from the date of its execution at the legal rate fixed by law; and a note containing the words, 'with the interest at the rate of one and one quarter,' but nothing more to indicate the rate, is governed by the same rule.

5. A witness otherwise competent, having first given evidence showing that he has had reasonable means and opportunity of becoming acquainted with the signature of an individual, may give his opinion whether the signature to a paper offered in evidence is or is not the genuine signature of such individual.

6. A receipt acknowledging the payment of money is prima facie evidence of payment, in favor of the party producing it, when the genuineness of the receipt is proved by a preponderance of the evidence, but such evidence may be rebutted by competent testimony.

7. It is proper for the court to charge that in determining the weight of the testimony given by the respective witnesses concerning material matters in controversy, the jury have the right, and that it is their duty, as jurors, to take into consideration the interest which any witness may have in the subject-matter involved in the litigation.

8. The provision of the Code that no judgment shall be reversed or affected by reason of any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties applies to variances and instructions.

James M. John, for appellant.

Northcutt & Franks, for appellee.

ELLIOTT J.

1. The overruling of a challenge to one of the jurors is assigned for error. The challenge was upon the ground of a previously formed opinion. In civil as well as criminal actions, challenges for cause are triable by the court. The decision of the trial court upon such challenge is not ground for reversal by an appellate court unless the decision is manifestly erroneous, and prejudicial to the party complaining of it. This rule is particularly applicable when the decision of the challenge depends upon oral evidence, as in this case. From the evidence submitted we cannot say that the trial court erred in concluding that the juror had not formed or expressed an unqualified opinion or belief as to the merits of the action. Code, §§ 162, 163; Babcock v. People, 13 Colo. 515, 22 P. 817.

2. The complaint alleged the death of Pedro Begue, and the due appointment of plaintiff as his administrator, before the commencement of this action. On the trial, plaintiff introduced evidence showing the death of Begue, as alleged. Letters of administration, issued and attested in due form by the county court, were also produced before the court, showing the appointment of plaintiff as administrator of Begue, as alleged. Nothing being offered to controvert the evidence thus produced, the court was justified in considering the representative capacity of the plaintiff as an established fact, for the purposes of the trial, and in such case it was not essential that the letters of administration should be formally read to the jury. Dyer v. McPhee, 6 Colo. 174.

3. It is assigned for error that the complaint does not state facts sufficient to constitute a cause of action. The complaint contains, inter alia, the following: 'For a first cause of action, on the 2d day of May, 1888, at the city of Trinidad, Las Animas county, Colo., the defendant, Jose A. Salazar, promised and agreed with the said Pedro Begue, under his hand, to pay to said Pedro Begue the sum of fiteen hundred dollars on the 1st day of June, 1888, with interest thereon from the said 2d day of May, 1888, at the rate of one and one-quarter (1 1/4) per cent. per month until paid; that he has not paid the same, or any part thereof.' The second cause of action is the same, in substance, except as to dates and amount. These are the only causes of action presented for consideration on this appeal. The objection urged by appellant is that the complaint does not allege any consideration for the promises sued on. This objection is not well taken. The averment of a promise by defendant, under his hand, is equivalent to an averment of a promise in writing, signed by defendant. The word 'hand,' in legal parlance, is often used to denote handwriting or written signature, as 'witness my hand and seal,' or 'witness my hand,' if the instrument be not under seal. The word is thus used in our statutes. In certain cases a judge or justice of the peace is authorized to issue a warrant under his hand. This undoubtedly means a writ or process in writing signed by the judge or justice, and when thus issued it is declared to be valid, without any seal. Gen. St. §§ 978, 985; Mills' Ann. St.§§ 1484, 1491. Appellant's pellant's objection to the complaint is untenable, at this stage of the controversy, for another reason. Without demurring, defendant filed a general denial, together with certain pleas of payment, in which the promises sued on were described as 'promissory notes.' This is an instance of express aider, wherein the averments of the answer supplement the averments of the complaint in respect to the character of the promises sued on. Having thus supplied the supposed defect in the complaint, the defendant cannot avail himself of such defect as a ground for arresting or reversing the judgment. See Mining Co. v. Johnson, 13 Colo. 260, 22 P. 459, and authorities there cited. A promise in writing by one person to pay another a certain sum of money at a certain time is a promissory note. A promissory note imports a consideration, even without the formal words, 'for value received,' and in an action thereon it is not necessary to aver a consideration for the promise of the maker. Story, Prom. Notes, § 1; Cowan v. Hallack, 9 Colo. 578, 13 P. 700, and authorities there cited; Bliss, Code Pl. § 268.

4. It is assigned for error that there is a manifest variance between the notes introduced in evidence and the notes described in the complaint. The first and second counts of the complaint being founded upon promissory notes, it follows that defendant was entitled to object, as he did, to the admission of evidence under those counts which did not, in substance, conform to their allegations. The notes given in evidence read as follows:

'Trinidad, Colorado, May 2, 1888. Thirty days after date will pay to Mr. Pedro Begue or to his order the sum of one, Fifteen Hundred Dollars with the interest at the rate of one and one-quarter until they will be paid, Jose A. Salazar.'

'Trinidad, Colorado. August 29, 1887. Twelve months after date, promise to pay to Mr. Pedro Begue, or to his order the sum of Two Thousand Dollars in cash, with interest at the rate of one and 1/4 the interest. for value received. Jose A. Salazer.'

It will be observed that neither of the notes specifies a rate of interest corresponding to the averments of the complaint. The rate of interest specified in each count of the complaint is 'one and one-quarter (1 1/4) per cent. per month until paid.' The notes do not specify interest at any rate per cent. per month. Neither of the notes contains the words 'per cent. per month,' nor are any words of the same legal tenor and effect contained in the notes. There was therefore a variance between the notes and the averments of the complaint. The effect of such variance upon the rights of the parties will be hereafter considered. To warrant the recovery of interest, as such, in the courts of this state, the case must come fairly within the terms of the statute. Hawley v. Barker, 5 Colo. 118; Railroad Co. v. Conway, 8 Colo. 1, 5 P. 142; Neuman v. Dreifurst, 9 Colo. 232, 11 P. 98; Refining Co. v. Tabor, 13 Colo. 58, 59, 21 P. 925; Butler v. Rockwell, 17 Colo. 290, 29 P. 458; Sammis v. Clark, 13 Ill. 544. The provisions of the statute in force when the notes in controversy were executed, and by which any recovery of interest thereon must be governed, were as follows: 'Section 1. The legal rate of interest on the forbearance or loan of any money, when there is no agreement between the parties, as specified in section three of this act, shall be at the rate of ten per centum per annum. Sec. 2. Creditors shall be allowed to receive interest, when there is no agreement as to the rate thereof, at the rate of ten per cent. per annum, for all moneys, after they become due, on any bond, bill, promissory note, or other instrument of writing. * * * Sec. 3. The parties to any bond, bill, promissory note, or other instrument of writing, may stipulate therein for the payment of a greater or higher rate of interest than ten per cent. per annum, and any such...