Terrell v. Walter E. Heller & Co., 22075
| Decision Date | 22 April 1968 |
| Docket Number | No. 22075,22075 |
| Citation | 439 P.2d 989,165 Colo. 463 |
| Parties | Amos H. TERRELL and Flora Terrell, Plaintiffs in Error, v. WALTER E. HELLER & COMPANY, Defendant in Error. |
| Court | Colorado Supreme Court |
Irvin L. Mason, Durango, for plaintiffs in error.
Bradford, McDaniel & Maynes, Durango, for defendant in error.
Defendant in error, Walter E. Heller & Company hereinafter referred to as Heller, brought this action against plaintiffs in error Amos and Flora Terrell to recover sums alleged to be due under two promissory notes executed by the Terrells and to foreclose chattel mortgages given by them to secure payment of their promissory notes. From the judgment for Heller, the Terrells bring this writ of error.
In 1961 the Terrells had purchased certain laundry and dry cleaning equipment from A.L.D. Incorporated of Chicago, Illinois, and had given in return their two promissory notes representing an aggregate indebtedness of $28,178.04, together with chattel mortgages encumbering the newly acquired equipment. A.L.D. Incorporated subsequently endorsed the notes and chattel mortgages to Heller. The Terrells made payments on their promissory notes to Heller for approximately one year. At the end of that time the laundry and dry cleaning equipment malfunctioned and the Terrells were unable to receive satisfactory service from A.L.D. Incorporated. They thereupon ceased making payments to Heller on their promissory notes, thereby forcing Heller to commence the present action.
In its complaint Heller alleged that it was a holder in due course of the Terrell promissory notes; that the Terrells were in default on their obligation; and that Heller elected to declare the entire indebtedness due and payable according to the acceleration clauses contained in the notes. Copies of the notes, which showed the endorsements to Heller, were annexed to the complaint. Heller prayed for a determination of the amounts owing on the Terrell notes, for a foreclosure of the chattel mortgages on the machinery, and for a deficiency judgment against them for any indebtedness remaining after sale of the chattels.
The Terrells filed an answer in which they alleged an affirmative defense that A.L.D. Incorporated had obtained the notes by fraud and for an inadequate consideration, and that Heller was not a holder in due course but had obtained the notes with knowledge of their infirmities.
Thereafter, Heller filed its motion for summary judgment based on the Terrells' depositions, the affidavits by Vogel, Heller's collection manager, and by Sussman, Heller's executive in charge of notes receivable. These affidavits and depositions established that Heller had obtained the notes without notice of any infirmities in the instruments. It was further made to appear, without contradiction, that the Terrells made payments to Heller for approximately one year before giving notice of A.L.D. Incorporated's alleged fraud. Finally, the affiants stated that a principal sum of $22,332.13 plus interest, attorneys' fees and costs remained owing on the notes upon which the action was brought.
The Terrells did not choose to file counter affidavits in opposition to the motion or to otherwise dispute the affirmative statements contained in the affidavits and depositions submitted in support of Heller's motion for summary judgment. The Terrells, however, responded by moving the district court to join A.L.D. Incorporated as a third party defendant. The district court denied this motion and that order is not...
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Ginter v. Palmer and Co.
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...379 P.2d 628 (1963). The procedural rule is designed to pierce through the allegations of fact in the pleadings. Terrell v. Heller & Co., 165 Colo. 463, 439 P.2d 989 (1968). It can, properly applied, save litigants the expense and time connected with a trial when, as a matter of law based u......
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Fort Collins Motor Homes, Inc. v. City of Fort Collins, 70--488
...We therefore affirm the trial court's ruling that no material issue of fact requiring a trial was presented. Terrell v. Walter E. Heller & Co., 165 Colo. 463, 439 P.2d 989; Carter v. Carter, 148 Colo. 495, 366 P.2d Plaintiffs' further assignments of error are found to be without merit. Judg......
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A Litigator's Guide to Summary Judgments
...of the client's case to the court and to opposing counsel. NOTES _____________________ Footnotes: 1. Terrell v. Walter E. Heller, Co., 165 Colo. 463, 439 P.2d 989 (1968); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961). 2. Terrell, note 1, supra. 3. See, Blaine v. Yockey,......