Ullery v. Brohm

20 Colo. App. 389

• Court: Colorado Court of Appeals
• Decided: January 15, 1905
• Docket: No. 2453
• Status: Published

Opinion

Thomson, P. J.

Suit against A. B. Ullery, by the payee, on the following promissory note:

“$156.57

Denver, Colorado, March 7, 1898.

On or before September 7th, 1898, after date, I promise to pay to the order of Otto Brohm, one hundred fifty-six and 57-100 dollars, payable at the office of F. D. Taggart, with interest at the rate of 10 per cent, per annum, from date until paid. Interest payable semi-annually. Value received.

Louis Guthner,

A. B. Ullery.”

The defendant demurred to the complaint for want of facts. The demurrer was overruled, and, the defendant electing to abide by his demurrer, judgment was given against him.

The complaint describes the defendant as a guarantor for Guthner. The defendant was not a guarantor, but a maker. By the use of the words, “I promise to pay,” the note became, in form, the joint and several note of the two makers. But the allegations of the complaint were otherwise sufficient to charge the defendant as a maker, and the reference to him as a guarantor was harmless. It was unnecessary specially to allege a consideration for the paper. The note, which was incorporated into the complaint as part of it, contains the words “value received.” The court, in overruling the demurrer, did not fix a time for answer; but the defendant announced that he would abide by his demurrer. He did not propose to answer, and needed no time for the purpose. The complaint did not allege that the plaintiff was the owner of the notes; but he was the payee, and, therefore, presumptively the owner.

The allegations of the complaint were admitted by the demurrer, and upon the election of the defendant to interpose no answer, it was the duty of the court to enter judgment for the plaintiff. Verification or want of verification of the pleading was unimportant. Let the judgment be affirmed.

Affirmed.