Munro v. King

3 Colo. 238

• Court: Supreme Court of Colorado
• Decided: April 15, 1877
• Status: Published

Opinion

Wells, J.

1st. The 4th plea of the defendant is double, and the demurrer was properly sustained. Meriwether v. Smith, 2 Scam. 30.

2d. The written agreement of January 10th, 1874, between Munro and Fuqua was erroneously excluded. It was affirmatively shown to have been executed cotemporaneously with the note, which was the foundation of plaintiff’s action. As between the original parties, therefore, the stipulations of this writing enter into and become a part of the terms of the promissory note. Byles on Bills, 98*. Their effect is to prescribe a contingency until the happening of which, no action can be maintained.

The' testimony of Morsman sufficiently evidences that the indorsement to plaintiff occurred subsequent to the day of maturity expressed in the nóte; plaintiff is therefore affected by the collateral contract, and the action is subject to the same defenses as if payee were plaintiff. The action was prematurely brought, and this is available under the general issue. Gould’s Pl., ch. V, §§ 137-8.

3d. The evidence offered to show failure or want of consideration was properly excluded. Patterson v. Gile, 1 Col. 200.

The judgment of the court below is reversed with costs.

Reversed.