Young v. Kimber

• Citation: 44 Colo. 448,98 P. 1132
• Parties: YOUNG v. KIMBER.
• Decision Date: 16 November 1908
• Court: Supreme Court of Colorado

98 P. 1132

44 Colo. 448

YOUNG v. KIMBER.

Supreme Court of Colorado

November 16, 1908

Rehearing Denied Jan. 11, 1909.

Appeal from District Court, City and County of Denver; John I Mullins, Judge.

Action by Virginia Kimber against Frank C. Young. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Daniel Sayer, Chas. R. Bell, and J. A. Bentley, for appellant.

Thomas Bryant & Malburn, for appellee.

BAILEY J.

The complaint in this action alleged that the plaintiff was the owner of certain bonds issued by the Gunnell Gold Mining &amp Milling Company; that upon the 1st day of January, 1900 there were interest coupons due thereon amounting to $1,295; that the International Trust Company of Denver was in possession of the bonds and coupons for plaintiff and delivered them to the defendant for collection; and that upon the 8th of January, 1900, the defendant collected for the use and benefit of the plaintiff the sum of $1,295 on account of these coupons. The seventh paragraph of the complaint is as follows: 'That said defendant, having received said sum of $1,295 for the use and benefit of this plaintiff, and for and on her account, then and there promised and agreed to pay the same to her upon demand, yet the plaintiff says that, though frequently so demanded, the said defendant has heretofore failed, neglected, and refused, and still fails, neglects, and wholly refuses, to pay the said sum of money or any part or portion thereof to this plaintiff.' The defendant filed an answer, in which he admitted all of the allegations of the complaint except this seventh paragraph, which was denied. In a separate defense he pleads certain matters which are not material to this controversy, as we shall presently see, and this is also true of plaintiff's replication. When the matter came on for trial in the district court, the plaintiff read the pleadings to the jury, and stated that she was willing to rest her case upon the admissions contained in defendant's answer. Defendant likewise stated that he was willing to rest. The plaintiff then called defendant to the witness stand, and, after having asked him some preliminary questions, defendant's counsel objected to the testimony being taken, for the reason that both sides had rested and any testimony which plaintiff would be entitled to introduce would be in rebuttal of that which defendant had introduced. Defendant not having introduced any testimony, there was nothing to rebut. Plaintiff admitted the correctness of this contention and withdrew the witness. Plaintiff then moved that the jury be instructed to return a verdict for plaintiff, and defendant moved for a nonsuit. The court instructed the jury to return a verdict for plaintiff in the sum of $1,695.08 upon which verdict judgment was rendered. All that portion of the verdict in excess of $1,295 was for interest.

The important question presented in this record is as to whether or not it is necessary to make a demand upon a party who has received money for the use of another before an action may be maintained to recover the same. There is apparently a great diversity of opinion on this question among the courts of last resort. This diversity is more apparent than real, however; each case seemingly having been determined upon its own peculiar facts. Upon receiving the money, it was defendant's plain duty to have remitted it to the plaintiff. There was an implied contract upon the part of the defendant that upon the receipt of the money he would deliver it to plaintiff, and a party is usually bound to perform his contracts without being first requested so to do unless there be an express stipulation to the contrary. We are inclined to believe that no demand was necessary before the institution of the suit. That belief is supported by the following authorities: In Howard v. France, 43 N.Y. 593, it was said by Mr. Judge Allen: 'It is the duty of one who has received money to the use of another to pay it over, and no demand is necessary by the latter before action.' 'No demand is necessary before bringing an action for money received to plaintiff's use where it was the duty of the defendant to have remitted it.' Stacy v. Graham 14 N.Y. 492. A., B., C., and D. were proprietors of a fishery, and B., who was called agent, treasurer, and clerk, received the money for the sale of the fish, made the disbursements, and kept the accounts. The accounts were settled and a balance struck in favor of the proprietors, but B. omitted to pay to D. the balance that belonged to him. Held, that D. might maintain an action in assumpsit against B. to recover the balance without first making a special demand of payment. Robinson v. Williams, 8 Metc. (Mass.) 454. S. H., the holder of a promissory note made by W. for $500, indorsed it to J. H., who at the same time gave the following receipt: 'When S. H. shall pay me his note of $100.00, given by him this day to me, then I will deliver up to him a note for $500, which he has indorsed over to me.' W. paid his note to J....