Drugs Service Co. v. Morrison

242 P. 74, 78 Colo. 377, 1925 Colo. LEXIS 608

• Court: Supreme Court of Colorado
• Decided: December 7, 1925
• Docket: No. 11,409.
• Status: Published

Opinion

Mr. Chief Justice Allen

delivered the opinion of the court.

This is an action which was originally instituted in a justice court by Clee L. Morrison against the Drugs Service Company to recover upon five promissory notes, each in the sum of $50. There was a judgment for plaintiff for $270 and costs. On appeal to the county court, and trial de novo, the plaintiff recovered a judgment for $273.30 and costs. Defendant brings the case here and applies for a supersedeas.

The action was begun in justice court on February 11, 1925. On February 18, 1925, defendant attempted to make an assignment for the benefit of creditors. On March 27, 1925, plaintiff received a check for $88.68, signed by the trustee under the assignment, or attempted assignment. The case came to trial on March 31, 1925, and thereupon plaintiff produced the check for $88.68 and stated that “she did not accept the check and did not want it.” This was a sufficient notification to the debtor, and made within a reasonable time, that the check would not be accepted in settlement of plaintiff’s claims.

Defendant now seeks a reversal of the judgment because plaintiff retained possession of the check until the time of trial in the county court, and then, for the first time, tendered it back to defendant. Defendant was not misled by that. It learned in the trial in justice court that the check was not wanted. Plaintiff in error cites Kinney v. Mercantile Co., 76 Colo. 136, 230 Pac. 127, but there the retention of a check was under different circumstances.

There is no error in the record. The application for a supersedeas is denied and the judgment is affirmed.

Mr. Justice Denison and Mr. Justice Whitford concur.