Hamill v. German Nat. Bank

Mr. Justice Hayt delivered the opinion of the court. At the trial all the allegations of the complaint were either directly conceded to be true by the defendant or proved by the uncontroverted evidence offered on the part of the plaintiff; the defendant relying for a defense to the present action upon the alleged agreement of plaintiff to dismiss the suit. The only evidence offered in support of such an agreement is contained in the following letter, introduced by appellant, and acknowledged by the parties to be the letter which accompanied the $1,000 payment: “London, England, March 80, '86. J. A. Cooper, Esq., Cashier German National Bank, Denver, Colorado. Dear Sir: On the eve of leaving for Europe last October I spoke to you about a certain P. N. made by one W. Willet Rose, payable to my order, for one thousand dollars, which, through O. H. Rothacker, fell into the hands of Judge Symes, and was discounted for him by your bank, You, I presume, are quite aware that I loaned Rose the money the face of the note calls for. I never received one cent for it, either from Rothacker or Judge Symes. It is somewhat 'tough' that one loans money and has to pay the same over again. There was, as I believe, some understanding between Rothacker and Symes that services rendered by the former would have some consideration with the latter, and with this idea in my mind I had hoped that Judge Symes would bear part of the loss. Mr. Morrison, my attorney, has promised your attorneys that I would settle the claim. With this end in view I now inclose you draft on the Colorado Mortgage and Investment Company, Limited, payable to your order. Kindly instruct your attorneys to dismiss the suit now pending. I expect to be in Colorado within the next sixty days, when I will call on you and pay the balance. Yours truly, W. A. Hamill.” [206] Appellee indorsed the money as payment pro tanto upon the note, refused to dismiss the suit, but prosecuted the same to judgment. “Appellant appeals on the ground that the payment was conditional, and having accepted the same appellee was bound to the condition.” Thus it will be seen that the sole question presented for our consideration may be stated as follows: Did the acceptance of the $1,000, under the circumstances, entitle appellant to a dismissal of the suit? In support of the affirmative of this proposition appellant relies upon the following cases: Berdell v. Bissell, 6 Colo. 162; McDaniels v. Bank, 29 Vt. 230; Preston v. Grant, 34 Vt. 201; Bull v. Bull, 43 Conn. 455; Potter v. Douglass, 44 Conn. 541; Elton v. Johnson, 16 Conn. 253; Lyman v. Rasmussen, 7 N. W. Rep. 687; Railroad Co. v. Smith, 50 Mich. 112; McAfee v. Fisher, 64 Cal. 246; Libby v. Hopkins, 104 U. S. 303. The first five of these cases are cited upon the law of accord and satisfaction, and have no application to the facts presented in this case, as the letter from Hamill, containing, as it does, an express promise to pay the balance, shows that the payment of the $1,000 by draft was not to be in complete satisfaction of his liability upon the note. There was no dispute at the time, nor is there now, as to the amount of the liability; nor is this case like Elton v. Johnson, supra, in which the guarantor sought to escape liability upon the plea that there was no consideration for his guaranty; nor is there any question here of the misapplication of money, as in Railroad Co. v. Smith and Libby v. Hopkins; nor is there any question in reference to the time" of maturity of the instrument, as in McAfee v. Fisher. And the case is also unlike the case of Lyman v. Rasmussen, in which it was decided that “ a valid agreement to extend the time of payment of a debt is a defense to an action on the debt during the time of the extension.” The letter of Hamill, transmitting the draft, shows that the amount was to be [207] credited upon the note, and contains a distinct promise to pay the balance. Although the letter contains a request upon the cashier to have the suit dismissed, there is nothing in the letter indicating that the payment was to be made upon this or any other condition. The letter will not admit of any construction other than that the payment was made unconditionally, while the request upon Mr. Cooper to dismiss the suit was one which the appellee might grant or refuse at its pleasure. Certainly the acceptance of the money under these circumstances did not entitle appellant to a dismissal of the suit as a matter of right. Appellee having elected to prosecute the suit to judgment, as it had a perfect right to do, we see no reason why the judgment should be disturbed, and it is accordingly affirmed. Affirmed. Mr. Justice Elliott, having presided at the trial below, did not sit upon this appeal.