Bown v. Traylor ( 1937 )

Mr. Justice Young

delivered the opinion of the court.

A rehearing was granted in this case and our former opinion withdrawn. The following now is announced as the opinion of the. court.

The judgment here presented for our consideration was rendered against plaintiff in error, defendant below, in an action on a promissory note and this opinion should be read in connection with that this day handed down in Waddell v. Traylor, 99 Colo. 576, .. P. (2d) ..., which is decisive of the questions presented in the present case.

In the record before us reference is made to a bill of particulars, but none appears therein; likewise the record fails to disclose what payments were made on the note, and we are unable to determine therefrom whether the amounts paid were in excess of the requirements to repay the principal with interest at the rate of twelve per cent per annum on the money actually received when the note was executed. If such excess payments were made, defendant’s counterclaim for a penalty in an amount treble the excess paid should stand, and recovery be permitted if the claim was made within the limited period of one year fixed by statute. These facts do not appear in the pleadings and the demurrer to the fifth defense and counterclaim should have been overruled.

The judgment is reversed and the cause, remanded with directions to the trial court to overrule the demurrers interposed to the second defense, and fifth defense and counterclaim. The court is advised that its ruling sustaining the demurrer to the third defense shall stand and that under our holding in the Waddell case, above mentioned, the fourth defense is eliminated as moot. Further proceedings shall not be inconsistent with the pronouncement herein or with the views expressed in the Waddell case opinion.

Mr. Justice Bouck specially concurs.