Winne v. Colorado Springs Co.

• Decision Date: 01 April 1877
• Parties: WINNE et al. v. COLORADO SPRINGS CO.
• Court: Colorado Supreme Court

3 Colo. 155

WINNE et al. v. COLORADO SPRINGS CO.

Supreme Court of Colorado

April, 1877

Appeal from District Court of El Paso County.

ON the 11th day of March, 1874, Myron F. Thomas made and delivered to the Colorado Springs Company (a corporation) his promissory note for $1,200, which was indorsed by Winne &amp Cooper, and Matt France. Suit was commenced upon the note after maturity, in the district court of El Paso county, by the payee against all the parties above named, and service had upon each. The declaration averred in one count that 'before the delivery of the note to the plaintiff, and in order to give the said Thomas credit with the plaintiff, and at the request and for the accommodation of the said Thomas the said defendants, Peter Winne and Job A. Cooper (in the style of Winne & Cooper), and Matt France, then and there indorsed the said last-mentioned note, and plaintiff further avers that in consideration of the said indorsement of said last-mentioned note or instrument of writing by the said Winne and said Cooper and said France, and on account of the credit so given to Thomas by such indorsement, the said plaintiff then and there accepted said last-mentioned note or instrument of writing and gave the said Thomas credit for the sum of money therein mentioned, according to the tenor thereof. And the defendants then and there delivered the said last-mentioned note or instrument of writing to the plaintiff, and thereby promised to pay to the order of the plaintiff the sum of money therein specified, according to the tenor thereof,' etc.

Judgment was taken against Thomas by default. The pleas interposed by his co-defendants were non-assumpsit nul tiel corporation and two special pleas. The plaintiff demurred to the special pleas, which are sufficiently stated in the opinion. The demurrers were sustained and judgment entered thereon as follows:

'This day this cause came on to be heard upon the plaintiff's demurrer to the third and fourth pleas of the defendants Peter Winne, Job A. Cooper and Matt. France, by them plead herein, the plaintiff appearing by his attorney, J. M. Davidson, and the said last-named defendants by their attorney, A. C. Phelps, and after argument of counsel, the court being fully advised in the premises, it is considered by the court that the matters and things in the said third and fourth pleas alleged are not, nor is any of them, sufficient in law to bar or preclude the said plaintiff of his action, and that said plaintiff have and recover of and from the said defendants, Winne, Cooper and France, his costs on this issue accruing.'

The cause was tried on the remaining issues at the October term, 1874, before a jury, resulting in a verdict for the plaintiff in $1,632, upon which judgment was subsequently rendered. Winne, Cooper and France appealed to this court. The errors assigned were: In sustaining the demurrers to the special pleas; that the district court erred in rendering final judgment in the cause without first entering judgment against the appellants upon the sustaining of the demurrer to their said third and fourth pleas, and without issue joined on said pleas; and that the district court erred in rendering final judgment in said cause without having first rendered the proper judgment against said defendants (appellants) on sustaining the said demurrers to their said special pleas.

It may be proper to state that no evidence appears to have been offered by the defendants in the court below tending to show their discharge as sureties.

Messrs. BENEDICT & PHELPS, for appellants.

Messrs. DAVIDSON & HARRISON, for appellee.

THATCHER D. J.

This was an action brought against Myron F. Thomas and the appellants upon a promissory note. Judgment by default was taken against Thomas. The other defendants, the appellants herein, plead the general issue, nut tiel corporation, and two special pleas, setting up in each a defense as sureties. To each of the special pleas a demurrer was allowed. Judgment was taken against all the defendants as a subsequent term.

The first error assigned is, that 'the district court erred in sustaining the demurrer of the plaintiff in said court to the third plea of the appellants.' This is a plea that the appellee, by an agreement with Thomas, and without the consent of the sureties (the appellants), gave him further time for the payment of the note 'for a good and valuable consideration,' and that thereby the sureties became discharged.

The demurrer to this plea is general and special. The special ground of demurrer is, that the plea contains no statement of the consideration. The plea is bad. The consideration is the very gist of the agreement to extend the time, and should be truly and fully pleaded. The mere averment that the time was extended 'for a good and valuable consideration' is not sufficient. It is but the statement of the existence of a consideration, without the facts out of which it arose. It is simply a conclusion of law which, as a rule, ought not to be pleaded. It may be laid down as a general proposition that whenever a parol agreement is declared upon, or pleaded in defense of an action (unless the agreement be a written instrument, purporting to be for value received, Prindle v. Caruthers, 15 N.Y. 425), the declaration or plea should disclose the facts from which it must appear that there was a legal consideration to support the agreement relied on. If such an averment be wanting, the court cannot on demurrer determine the legal sufficiency of the consideration. On another ground, it is necessary that the consideration should be explicitly stated, viz.: that the adverse party may not be surprised at the trial by the introduction of the testimony to prove a consideration not stated in the pleading. Marshall v. Aiken, 25 Vt. 332; 1 Chitty's Pl. (16th Am. ed.) 300, note k; Harris v. Rayner, 8 Pick, 542; Moore v. Ross, 7 N. H. 528; Bailey v. Bussing, 29 Conn. 5.

It was not necessary to set up this defense by a special plea, as even if well pleaded, the same defense is available under the general issue. Warner v. Crane, 20 Ill. 148.

The next error assigned is, to the allowance of the demurrer to the defendants' fourth plea, which sets up substantially that the principal debtor being solvent and prepared to pay at the maturity of the note 'offered to pay the said plaintiff the amount due thereon,' which offer the plaintiff refused, and that thereafter Thomas became and remained insolvent, whereby the sureties became discharged. If this is intended to be a plea of tender, it is substantially defective. Not a mere offer to pay, but an actual tender must be averred, unless the production of the money was waived, in which case the waiver must be pleaded, and it must be alleged that the defendant was about to tender, etc. 2 Chitty's Pl. (16th Am. ed.) 471, note a.

If the plea is intended to set up an offer to pay by the principal debtor, he being solvent, the question is, does such a plea present a valid defense to an action against the sureties? When a tender is actually made of the amount due satisfaction of the debt is within the reach of the creditor. Good faith to the sureties requires that he should accept the money. Sureties are liable to the creditor; but their obligation is accessory to that of the principal. When the principal makes payment, or actually tenders payment of the sum due to the creditor, he does all that the sureties are legally and equitably required by their contract to see that their principal shall do. If the creditor refuses to accept the money, when actually tendered and clearly within his grasp, he is guilty of a palpable omission of duty to the sureties, and they are...