Stevenson v. Lord

• Decision Date: 19 November 1890
• Parties: STEVENSON v. LORD.
• Court: Colorado Supreme Court

25 P. 313

15 Colo. 131

STEVENSON v. LORD.

Supreme Court of Colorado

November 19, 1890

Appeal from superior court of Denver.

Reddin & Allphin, for appellant.

Stuart B. Andrews, for appellee.

HELM C.J.

E. M and L. R. Smith borrowed of Mrs. Lord a sum of money, giving their promissory note therefor, secured by a chattel mortgage upon certain personal property, which was duly filed for record. The mortgage contained a provision permitting the mortgagors to retain possession of the property until default in payment of the note, or until the happening of certain other contingencies therein specified. The property while thus situated was attached by a creditor of the mortgagors. By virtue of such attachment, Mrs. Lord became entitled to immediate possession of the mortgaged chattels. She brought suit in replevin therefor against appellant, Stevenson, who was the sheriff holding under the attachment. A demurrer to her complaint having been overruled, answer was filed, the cause was tried, and she recovered judgment for the possession of the chattels, or, in case possession were not obtained, for their value.

The objection, taken by demurrer, that the complaint failed to state a cause of action, was not waived, as counsel contend by pleading over. Under the statute, this question may be raised at any time; but the demurrer was correctly overruled. The complaint, in our judgment, sufficiently pleaded a cause of action. Had the note matured, and suit been instituted to recover the principal and interest thereon, an express averment by plaintiff of non-payment would not have been necessary. In most of the states payment is regarded as a defense, and is usually pleaded as new matter in the answer. Pom. Rem. § 700; Watson v. Lemen, 9 Colo. 200, 11 P. 88. But if a complaint in assumpsit upon a promissory note need not affirmatively aver nonpayment, much less need the complaint in the present action contain this allegation. The evidence sufficiently establishes the execution and delivery of both the note and mortgage, and the acknowledgment of the latter instrument is in substantial conformity to the requirements of the statute. While in some of the states the value of the different articles involved in this action must be separately found, such has not been the rule in Colorado. The statute provides that, 'in an action for the recovery of personal property, judgment for the plaintiff may be for the possession...