Gillett v. Flora

Mr. Justice Denison delivered the opinion of the court. This was a suit by Flora against Gillett, charging him as endorser of a promissory note. Plaintiff had judgment and defendant brings error. The note was secured by mortgage, which was purchased together with the note, and was assigned to Flora by Gillett. By the terms of the assignment the mortgage was transferred “together with the notes or obligations therein described without recourse or in any • event or for any cause.” The assignment and indorsement, being parts of one transaction, are one contract and therefore the indorsement is a qualified one, and the defendant was a mere assignor, not liable as endorser. G. S. 1908, § 4501. Davis v. Brown, 94 U. S. 423, 427, 24 L. Ed. 204; Munro v. King, 3 Colo. 238, 240. The plaintiff claims that the assignment of the mortgage was made on the day after the indorsement, and so was not contemporaneous therewith, and that therefore the two are not to be construed as one contract. The exact time is not material. The vital question is whether they were parts of one transaction. On this point plaintiff’s own testimoney defeats him. He says that at the time he made the deal with Gillett he was to receive the note and mortgage, that he did receive them and recorded the assignment. He says further: “I had been in the habit of getting those” [220] (meaning assignments of mortgages) “when I transferred and got a mortgage, but they didn’t bring it up at the time they brought the mortgage and I asked for it and they brought it later.” So it appears that he bought the note and mortgage together, that the sellers delivered the mortgage without an assignment, that according to his custom he asked for the assignment and got it. This makes one transaction. Moreover the assignment itself purports to assign the note as one transaction with the assignment of the mortgage. Plaintiff claims that when he received the assignment he did not read it, but recorded it without reading and did not know of the clause in question till the defendant pleaded it. He cannot be heard to say that he did not read the assignment or know what it contained. Jaeger v. Whitsett, 3 Colo. 105; Upton v. Tribilcock, 91 U. S. 45, 50, 23 L. Ed. 203. The judgment should be reversed with directions to dismiss the case. Bailey, J. and Scott, J, concur.