De La Vergne v. Globe Printing Co.

• Citation: 148 P. 923,27 Colo.App. 308
• Decision Date: 10 May 1915
• Docket Number: 4097
• Parties: DE LA VERGNE v. GLOBE PRINTING CO.
• Court: Colorado Court of Appeals

148 P. 923

27 Colo.App. 308

DE LA VERGNE v. GLOBE PRINTING CO.

No. 4097

Court of Appeals of Colorado

May 10, 1915

Error to District Court, City and County of Denver; H.P. Burke Judge.

Action by the Globe Printing Company, a corporation, against E.M. De La Vergue. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Francis J. Knauss and Wm. A. Cook, both of Denver, for plaintiff in error.

Davis Whitney & Mothersill, of Denver, for defendant in error.

KING J.

This is an action by the Globe Printing Company, a corporation indorsee, against E.M. De La Vergne, as indorser, of a promissory note made by W.D. Ham, payable to De La Vergne February 5, 1913, at the Federal National Bank of Denver. After demurrer overruled, the defendant denied presentment to him for payment, and alleged that notice of dishonor had not been given him, and that he had not waived presentment, demand, or notice of dishonor, which allegations were denied by the replication. Judgment for plaintiff.

1. The complaint alleged presentment at the Federal National Bank February 5, 1913, to, and demand for payment made on, the indorser, as well as the maker. Section 115 of the Negotiable Instruments Law provides that notice of dishonor is not required to be given to the indorser "where the indorser is the person to whom the instrument is presented for payment." Mills' Ann.Stats. § 5165; R.S.1908, § 4578; In re Swift (D.C.) 106 F. 65, 69. Therefore the demurrer was properly overruled.

After failure to prove presentment to the indorser, the complaint alone was not sufficient to admit of evidence to prove that notice of dishonor was either given or waived. Sykes v. Kruse, 49 Colo. 560, 113 S.W. 1013. But the allegations of the answer, denied by the reply, constituted an "express aider" of the complaint, and cured its defects. Chitty, Pleading (7th Am.Ed.) *703; Cowell v. S.D.R.E. Co., 16 Colo.App. 108, 63 P. 991; Chesapeake & O.R. Co. v. Thieman, 96 Ky. 507, 29 S.W. 357; Slack v. Lyon, 9 Pick. (Mass.) 62; Stivers v. Horne, 62 Mo. 473, 475; Wall v. Toomey, 52 Conn. 35; 31 Cyc. 714. Moreover, no objection was made to the proof offered on the ground that the complaint was insufficient.

2. To affirm the judgment, we need not agree with the trial court in holding that the giving of notice of dishonor was not required nor waived, nor, indeed, decide those questions. Presentment to the indorser was not made, but the court found that notice of dishonor had been duly given. The evidence on the part of the plaintiff shows that the note was indorsed in blank by defendant and delivered to plaintiff; that plaintiff indorsed it and left it in the Federal National Bank until and during all of February 5th; that on January 27th plaintiff notified the defendant by letter that the note was at the bank, and that Ham, the maker of the note, would not be able to pay it, and asked defendant to attend to it promptly. On February 6th the bank told the plaintiff that the note had not been paid. About 9 a.m. on February 7th plaintiff gave oral notice to defendant that the note had not been paid. Under our statute, such evidence sustained the finding of fact made by the court. Oral notice is sufficient. Mills' Ann.Stats. § 5146; R.S.1908, § 4559. The note was dishonored in the hands of an agent, to wit, the bank, which notified its...