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the plaintiff agreed, in consideration of the payment to him of all the rents of the premises, to forbear foreclosure as long as the rents should be so paid to him; while the defendants agreed, in consideration of his forbearance of foreclosure for a sufficient time to enable him to dispose of the premises so as to protect their own notes, to turn over to him the rents, less taxes, which they were to pay and deduct. These two so-called agreements are not the same. Saying nothing of the difference between them as to the time of forbearance, they vary as to the amount to be paid. One contemplates the payment of the whole amount of the rents to the plaintiff, while the other contemplates the payment of only a portion; that is, the whole amount diminished by a deduction for taxes. Each agreement was unilateral, and of no effect unless concurred in by the other party. If the complaint contained nothing on the subject of an agreement except that of which we have just spoken, we should say that the position of the defendant was well taken, and that the complaint set forth no contract, and hence no cause of action. A unilateral agreement amounts only to a proposition by one party to another, and, until it is accepted by the one to whom it is addressed, it is binding upon neither. Unilaterally employed, the word "agree" is equivalent to the word "offer," and a contract which is enforceable results only from the assent of the other party. Railway Co. v. Dane, 43 N. Y. 240; Pom. Cont. § 50 et seq.

It does not appear that the plaintiff's proposition to the defendants was ever accepted. It therefore never became a contract, and we do not see that anything is claimed here on account of it. But the complaint also sets forth a proposition from the defendants to the plaintiff, and it states facts which amount, in law, to an acceptance by the plaintiff of that offer. The complaint distinctly says that in consideration of the defendants' agreement the plaintiff forbore foreclosure for two years, and that from time to time he received from the defendants rents which had been collected by them from tenants of the premises. The forbearance was in consideration, not of the plaintiff's, but of the defendants', agreement. It was therefore upon that agreement that the minds of the parties united. In conformity with that agreement, the plaintiff forbore, and the defendants paid him the rent. By the acts of the parties, it became a valid and enforceable contract. The defendants made the offer, and the plaintiff accepted it. It was not necessary for the plaintiff to agree, in words, to postpone foreclosure. His assent to the proposition was signified by his compliance with the terms of the offer. A request followed by performance constitutes a contract. Yancey v. Brown, 3 Sneed, 90; Strong v. Sheffield, 144 N. Y. 392, 39 N. E. 330; Morton v. Burn, 7 Adol. & E. 19; Reynolds v. Douglass, 2 Am. Lead. Cas. (5th Ed.) 96 et seq. And it is not necessary that there

should be a stipulation to forbear for a specified time. An agreement to forbear for an indefinite time, if followed by actual forbearance for a reasonable time, is a good consideration for a promise. Elting v. Vanderlyn, 4 Johns. *237; Thomas v. Croft, 2 Rich. Law, 113; Howe v. Taggart, 133 Mass. 284; King v. Upton, 4 Greenl. 387; Moore v. McKenney, 83 Me. 80, 21 Atl. 749.

We do not think that the complaint is defective in its statement of a cause of action. It sets forth an offer by the defendants to pay to the plaintiff the rents of the premises, less taxes, which they assumed, if he would forbear foreclosure of his trust deeds for an indeterminate time, so as to enable them to save their own debt, and then avers that, in consideration of their promise, he did postpone foreclosure for a period of two years, which, forming our judgment from the allegations of the complaint, seems to us to be a reasonable time. His performance of their request entitled him to a fulfillment of their promise.

The version of the transaction contained in the answer of the defendant Willis M. Marshall is that on the 1st day of February, 1894, the interest due upon the plaintiff's notes since October 1, 1893, being unpaid, the defendants proposed to the plaintiff that, if he would postpone foreclosure proceedings upon his trust deeds for two years, they would turn over to him the rents of the premises, less the expenses of collection, less the expenses of keeping the premises in repair, and less the expenses of their maintenance; that the plaintiff refused to postpone foreclosure for two years, or for any time, but said he was inclined to believe that if the defendants paid him the rents, less expenses of collection, repairs, and maintenance, he might not foreclose; that by reason of his statement, and a hope that he held out that he would not foreclose, they paid him the amounts mentioned in the complaint, and paid out for collection, repairs, and maintenance the further sum of $500; and that the plaintiff did not postpone foreclosure for two years. The answer agrees with the complaint in this: that the defendants did request the plaintiff to forbear foreclosure, promising to pay him the rents less deductions; but it disagrees with the complaint as to the time when the offer was made, and as to the character of the deductions. It denies that foreclosure was postponed for two years, but it does not deny that there was a postponement. The averments of the answer are not inconsistent with the existence of a cause of action in the plaintiff; although, from its statements, the meas, ure of his recovery, if he was entitled to a recovery at all, would not be the same with that which he claimed; and, to find what the rights of the parties were, resort must be had to the evidence.

For the defendants it is contended that the evidence is insufficient to support the judgment. It will therefore be necessary to look

into it. It appears that the plaintiff, Mr. Old, lived out of Denver, and that Mr. E. H. Park had the general charge of the property for him, and collected the interest on his loans. Mr. Park was a witness for the plaintiff, and testified that in January, 1894, one of the Marshall brothers came to him, and proposed an arrangement by which Mr. Old would not foreclose upon the property for two years, so as to allow them time to make a turn by which they might collect their own trust-deed notes, offering to take charge of the property, keep it in repair, collect the rents, and pay them to Mr. Old, to be applied upon his interest; that witness replied that he had no authority to speak for Mr. Old in relation to the proposition; that a short time afterwards Mr. Old came to the city, and witness went with him to the defendants' place of business, where Mr. Old had an interview with them; that they then and there suggested that they take the property and collect the rents, and, after deducting what was necessary to keep the premises in repair and pay the taxes, turn the balance over to Mr. Old, to apply upon his interest, the latter to forbear foreclosure for two years, or some such time, so that they could turn the property in some way, and get their money out of it; and that Mr. Old agreed to the request, and said he would not foreclose if they would turn the rents over to him as they proposed. Willis H. Marshall, the appellant, was a witness for the defense. His testimony was that on the 10th day of February, 1894, he went to Mr. Park, and stated to him that the defendants had, or soon would have, possession of the property, by assignment from its owners; that they had no money to put into the property to protect their second deeds of trust, but hoped that the times would improve so that a deal of some sort could be made, whereby they could get out, or partially so, and proposed to Mr. Park that they would pay over to him the rents from the property, less 5 per cent. commission for collecting them, and less maintenance and expenses in taking care of the property, provided he would agree to delay foreclosure. The witness further testified that Mr. Park refused to accede to the request; saying, however, that he was satisfied that, if they would turn over the rents as they proposed, Mr. Old would not foreclose. The witness also stated that delay of foreclosure was not asked for any definite time; saying, "A year would have suited me, or two or three years." The evidence showed that the plaintiff foreclosed one of his trust deeds on the 27th day of January, 1896, and the other on the 2d day of March, 1896. Marshall testified that rents to the amount of $1,200 were collected, from which there was to be deducted 5 per cent. commission for collecting them; and that the payments to the plaintiff, and the outlay for repairs, maintenance, and taxes, footed up $649. The judgment was for $446.80. We do not see how it can be said that the evidence does not support the judgment. There was no serious disagreement between

the witnesses; but, if there had been, we should accept that testimony as true which would sustain the judgment of the court. It was proved that the defendants requested postponement of foreclosure for an unspecified time, agreeing to collect, and account to the plaintiff for, the rents, less certain deductions. It was in evidence that the plaintiff acceded to the request, and did delay foreclosure for nearly, if not quite, two years,-a period which was reasonable and entirely satisfactory, according to the testimony of Mr. Marshall himself. It was shown that the defendants did collect the rents, and that, after making allowance for all the deductions they claimed, and their commissions, they paid only a portion of the amount to the plaintiff. By the delay, they were enabled to receive the rents. If the plaintiff had foreclosed immediately, these would have gone to the purchaser at the sale. In most of the cases where the questions involved here have been considered, the party sought to be held had guarantied the debt of another in consideration of forbearance to sue, so that the enforcement of his promise would involve payment by him of his own money; but here the defendants negotiated for an advantage to themselves, which would cost them nothing. They received money which otherwise they would not have obtained, and were even paid for their trouble in collecting it. The money which they received was not their money. But for the forbearance, it would have belonged to another. By the terms of their own proposition to the plaintiff, they were to collect it for him, and the portion they have withheld belongs to him. From the figures before us, it is evident that the judgment is not for too much; and, being warranted in other respects, it will be affirmed. Affirmed.

BISSELL, P. J., not sitting.

(14 Colo. App. 13) HENDRIE et al. v. GRAHAM.1 (Court of Appeals of Colorado. Nov. 13, 1899.)

ASSIGNMENTS FOR CREDITORS-SURRENDER OF COLLATERALS TO ASSIGNEE-DIVIDENDS -CONTRACTS-VALIDITY — MISREPRESENTATION OF LAW.

1. The rule entitling a creditor of an estate assigned for creditors to dividends on the full amount of his claim, to the point of complete satisfaction, after he obtained partial satisfaction by a sale of collaterals subsequent to the assignment, does not enable the holder of a note against an assignor for creditors to claim. dividends after surrendering the note and collateral to the assignee, in consideration of a payment by the assignee of a sum less than the face value of the note.

2. Where, at the time of the surrender of the collaterals, the assignee was offered for them by a third person a sum exceeding their value, the fact that the assignee procured such surrender by representing to the holder that, if he refused the offer, he would be liable for the difference between the value of the collaterals and the offer, is no ground for setting aside the

1 Rehearing denied December 11, 1899.

transaction, though such legal proposition of the assignee was erroneous.

Appeal from district court, Arapahoe county.

Petition by Hendrie Bros. & Bolthoff to compel David B. Graham, assignee of J. J. Riethmann and the firm of J. J. Riethmann & Co., insolvents, to compute dividends on the total amount of their claim. From an order denying the petition, petitioners appeal. Affirmed.

J. J. Riethmann and J. J. Riethmann & Co., both the individual and the firm, made assignments for the benefit of creditors prior to January, 1895. At the time of the assignment the individual and the firm were indebted to various parties, and had executed commercial paper to represent the debts. One note, signed by both Riethmann and Riethmann & Co., bearing date January 18, 1894, was executed and delivered to Hendrie Bros. & Bolthoff, whereby the makers promised to pay a year after date, without grace, for value, $43,000 at the State National Bank of Denver, with interest at 10 per cent. semiannually from date until paid. The note contained also a recital that the makers had deposited with the payees sundry certificates of tramway stock representing some several hundred shares, and authorizing the payees or their assigns, on the nonpayment of the note or any other liability on their part to the payees, to sell the collateral and apply the proceeds. The further conditions of the note need not be stated. On January 18, 1895, after the assignment, Hendrie Bros. & Bolthoff filed an account against the estates of the two assignors, and laid their claim at $45,150. The filing was incorrect, the true amount of the claim, with interest to the date of filing, being subsequently established as $44,166.31. The estates were in the process of settlement for some time prior to the filing of the present petition. During this time Hendrie Bros. & Bolthoff received $1,500 as dividends on the stock, and they were likewise paid some $2,150 as interest, to prevent, according to the allegations of some of the papers appearing in the proceedings, the foreclosure of the collateral. What we shall now state with reference to the present transaction can scarcely be said to be established by evidence or by undenied allegations, but enough appears in the papers, and was stated by counsel on the argument, to warrant the history of it to the extent to which we shall use it.

In 1897 the stockholders of the tramway company were apparently divided into two parties or factions, and there was a struggle between them to obtain control of the corporation. This contest gave the stock thus pledged with Hendrie Bros. & Bolthoff an unusual and undue value, and one, at least, of the contending parties desired to purchase it in order to control the affairs of the tramway corporation. It is not well settled that they had approached Hendrie Bros. & Bolthoff

Just

themselves with reference to it, although the petition so alleges, but this seems to be denied. It is unimportant. It is enough to say there was no purchase and no successful attempt to purchase this stock of the pledgees by a third party. Parties did go to the assignee, D. B. Graham, and through him attempt to obtain control of the stock. how this was done -just what the offer wasis not entirely clear, but substantially it would seem to be that the parties authorized Graham to negotiate with Hendrie Bros. & Bolthoff for the stock, and to pay them for it, if it was necessary to obtain it, the full amount of their claim as filed, $44,166.31. Graham approached the pledgees, made them an offer, and that offer was distinct and in writing, and is the only offer and the only matter in the transaction with which we have any concern, or which we have any right to consider. What was said by the assignee to Hendrie Bros. & Bolthoff, or by them to him, is unimportant, and cannot be considered, because both the offer and the acceptance are in writing, and by the terms of these papers the parties are bound. These writings are:

"Denver, Colo., April 30, 1897. To Hendrie Brothers & Bolthoff, or Their Assigns-Gentlemen: The undersigned, David B. Graham, the assignee of the estate of John J. Riethmann & Co., does hereby and herewith tender to you the full sum of forty-four thousand one hundred and sixty-six dollars and thirty-one cents ($44,166.31), the same being the full amount of a certain promissory note held by you against the estate of John J. Riethmann and John J. Riethmann & Co., and duly filed by you as a claim against the said estate, together with the interest thereon to the date of the assignment of the said John J. Riethmann and J. J. Riethmann & Co. for the benefit of their creditors, less amounts of the interest paid thereon; and the undersigned respectfully requests the surrender to him of the said note, together with the certificates representing one thousand (1,000) shares of the Denver Tramway Company's stock, held by you as collateral security for the payment of said note. [Signed] David B. Graham, Assignee."

"Denver, Colo., April 30, 1897. Received of David B. Graham, as assignee of the estate of John J. Riethmann and John J. Riethmann & Co., the full sum of forty-four thousand one hundred and sixty-six dollars and thirty-one cents ($44,166.31), the same being the amount in full of a certain promissory note heretofore held by the undersigned against the estate of John J. Riethmann and John J. Riethmann & Co., the said note being for the principal sum of forty-three thousand ($43,000) dollars, and dated January 18, 1894, and being secured by one thousand (1,000) shares of the capital stock of the Denver Tramway Company, and said note, together with the said stock, has been duly turned over and delivered to the said assignee. [Signed] Hendrie Brothers & Bolthoff."

On the acceptance of the proposition in this form, the assignee presented his petition to the district court, asking for specific authority to take the money and apply it to the payment of Hendrie Bros. & Bolthoff's claim, or else he paid the claim, and had it duly approved afterwards. Whichever way he did it, the court approved the proceedings, Hendrie Bros. & Bolthoff got the money, to wit, the total amount of the claim, surrendered the stock, surrendered the note, and, so far as this record shows, thereafter had no claim whatever against either estate. It is apparent from the amount of the claim as paid, from the date of the proof of it, and the date of the payment, that there was a very considerable amount of interest which accumulated on the original claim from the time it was filed until this transaction. Hendrie Bros. & Bolthoff presented a petition to the district court praying for a direction to the assignee to compute dividends on the total amount of their claim until they should receive a sum equal to the unpaid interest. The petition was denied, and the parties bring the case here.

R. D. Thompson and Harvey Riddell, for appellants. Hartzell & Steele, for appellee.

BISSELL, P. J. (after stating the facts). The right of the petitioners to demand payment of the dividends on the amount of their claim, as filed against the assigned estates, must be measured by the terms of the written offer of the assignee and its acceptance by the petitioners. There is no other basis for the determination. The record contains no evidence which throws lawful light on the subject, save possibly what little may be found in the application of the assignee for permission to negotiate with the owners of the claim. This in no manner aids in the interpretation of the written instruments. It enables us, however, to suggest a little more perspicaciously the circumstances of the negotiation and what led up to the transaction. It is used only for that purpose, and is in no manner a basis on which to rest our conclusion, nor does it in any wise affect the determination of the issue.

This is not a case which calls for the application of the rule ordinarily used in the computation of dividends for the purpose of distributing the assets of insolvent assigned estates where the claimant is the holder of collateral security. That rule was discussed in this court in Sullivan v. Erle, 8 Colo. App. 1, 44 Pac. 948, and in the supreme court in Erle v. Lane, 22 Colo. 273, 44 Pac. 591. It was wholly irrelevant, except for the purposes of illustration. I thought then, as I think now, that the same rule ought to be applied, whether the estate is in the possession of an assignee by voluntary appointment or by legal succession. But such is not the law in Colorado. The opinion in 22 Colo. and 44 Pac. seems to concede that, in a case of voluntary

assignment, the authorities-at least the current and weight of them-hold the creditor may receive dividends on the amount of his claim as filed, unaffected by his subsequent disposition of collaterals to the point of complete satisfaction. This doctrine is approved by this court as now constituted, notwithstanding the declarations of the principal opinion in Sullivan v. Erle. In this opinion we are supported by a late case in the supreme court of the United States. Merrill v. Bank, 19 Sup. Ct. 360, 43 L. Ed. 640. To voluntary assignments, such as are involved here, this doctrine will doubtless prevail in this jurisdiction; for, while the supreme court is by no means irrevocably committed to it by any express adjudications, its declarations are in harmony with it, and would doubtless be embodied in an affirmative opinion, should the question be directly presented. This rule is seriously and earnestly pressed on our attention as applicable to the present situation. The various cases in which the principle has been invoked have been cited, and counsel contend that it is their legal right to apply the moneys which they received to the payment, first, of the interest, next to the liquidation of their principal claim, and, since the adjustment was subsequent to the time the claim was filed, they are entitled to insist that the assignee shall, as to all subsequent dividends, regard them as holding a claim against the estate, and compute their share upon the claim as filed regardless of what they may have realized from this transaction. We concede the law to be as they contend it, and, if we believed the facts justified it and the circumstances warranted, would apply it. We do not so believe. The present is not a case, as the facts are exhibited by the record, where the creditor holding collaterals filed his claim against the estate, and subsequently disposed of these collaterals to third parties, reaping by the sale funds properly applicable to the liquidation of his debt. We should be quite ready to concede, had Hendrie Bros. & Bolthoff sold this stock to Evans or to anybody else for $44,166.31, their claim against the estates would stand as filed, and dividends would be computable on its entirety until the moneys they had thus received from the sale of the collaterals, plus the dividends paid by the assignee, should equal the entirety of their claim and interest. This is the rule which the major portion of the courts have adopted, and to which we unhesitatingly subscribe. The petitioners make no case for its application. They did not sell the collaterals to third parties. They did not hold the collaterals and the note against the estate. As the facts are exhibited by the petition, they have no claim against the estate. The transaction was with the assignee. That officer made them a direct written proposition to pay them the sum of $44,166.31 for the surrender of the note and the collateral. Those were the terms of the offer. Those were its only terms. The assignee made no attempt to pay

them $44,166.31 as a dividend. As we understand it, the estate never paid a dividend to that extent, which is 100 cents on the dollar. We are not exactly advised by the record, but there is nothing in it to indicate to us that the combined estates ever paid 50 cents on the dollar. The case, then, does not present a situation wherein the assignee is paying dividends to the creditors who have filed claims, who are still insisting that they have a right to apply the proceeds at their pleasure. At the time of this payment there was no dividend declared, none to be paid, no funds in the hands of the assignee to pay it, nor was he attempting to pay any dividend to the claimant. It was, according to the paper, a direct and naked proposition to pay them the total amount of their claim for the note and collateral. The payment was to be made on condition that the note and collateral should be surrendered to the assignee. This proposition was accepted in specific terms and in writing. It is recited that the claimants have received of Graham, as assignee, the full sum of $44,166.31, being the amount in full of a promissory note held by them against the assigned estates, and recites the turning over of the note and stock to the assignee. The proposition and the acceptance show that the assignee offered the claimants 100 per cent. more than the estate would have paid as a dividend for the surrender of the note and the stock. The proposition was accepted. It was neither in law nor in equity a redemption, in the specific sense. If it amounts to anything, it amounted to a purchase by the assignee of that note and that stock for a specific sum for the betterment of the estate. We think the legal effect of it is a sale to the assignee by Hendrie Bros. & Bolthoff of the note, and of all interest in the collateral, and the consideration was the payment of the sum total of their claim. Brown v. Dunckel, 46 Mich. 29, 8 N. W. 537.

We are quite unable to admit the case presents the circumstances of a partial payment and a receipt for the sum total, which never concludes the creditor. The transaction on its face, and under all the circumstances, was simply a negotiation with the assignee for the sale and surrender of those certificates of stock and the note, for a definite consideration, which was then paid. As we conceive, it makes no difference to these petitioners where the assignee got the money. He may have gotten it from Evans or from anybody else. The offer came from him to them to surrender the note and the stock for so much money, a proposition which amounted to a compromise and sale of their claim for a cash consideration largely more than could have been realized under any other circumstances. The estates would never have paid that amount of money, nor would the estates plus the stock have ever paid that amount of money, up to the present time, but for the controversy between the two parties in the tramway corporation which led to a bidding for

the stock to a point largely beyond any at which it had theretofore or has since sold.

We

The parties, complain very much in their petition and insist in their argument on the force of the circumstances surrounding the transaction. It is insisted the assignee stated to Hendrie Bros. & Bolthoff, if they failed to take this amount of money and surrender their note and stock, they would be held liable for the difference between the actual worth of the stock and what they were then offered for it; he insisting, as a matter of law, they would be liable for the difference. do not see the force of these suggestions. It is an ancient maxim that ignorance of the law excuses no act, and we do not well see how a statement of what the law is, even when it is probably accurate, as it was in this case, can be used as a lever to pry open a transaction which has been practically concluded between parties. We cannot concede the parties were misled by the statement, nor do we discover anything in what the assignee said which would not be regarded as sound legal advice if it had been offered by an indifferent party.

We think the parties have been exceedingly fortunate concerning the payment of their debt and so much of their interest. We do not believe they are entitled to anything farther from the estate, and when they sold their certificate, and surrendered the note to the assignee, they lost all claim against the estate, and there is nothing whereon to prove up, and they had nothing left whereon to apply the moneys which they received on the surrender. So far as we are able to judge, it was a fair, equitable compromise and sale, the parties are concluded by the terms of the instruments which they executed and by the facts of the transaction, and we know of no rule or principle of law which would justify the granting of the prayer of their petition. The judgment of the district court denying it will therefore be affirmed. Affirmed.

(13 Colo. App. 474)

COLORADO FUEL & IRON CO. v. SEDALIA SMELTING CO. et al.1

(Court of Appeals of Colorado. Nov. 13, 1899.) CORPORATIONS-STOCKHOLDERS' RIGHTS-UNPAID SUBSCRIPTIONS-TRUST FUND-CORPORATE DEBTS-STOCKHOLDERS' PERSONAL

LIABILITY-SET-OFF.

1. Where, in an action by a creditor of an insolvent corporation against a stockholder to recover unpaid stock subscriptions, it appeared that the stockholder loaned the corporation $5,000, and advanced other sums amounting to $11,840, for which he recovered a judgment against the corporation, under which all the company's property was sold, and purchased by him for less than the amount of the judgment, it will be presumed, in the absence of proof to the contrary, that the $5,000 loaned was included in the judgment.

2. Under Gen. St. 1883, §§ 247, 258, making stockholders individually liable for corporate debts to the amount of unpaid stock subscriptions, as in cases of garnishment, and provid

1 Rehearing denied December 11, 1899.

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