
    [No. 4903.]
    The Florence Oil and Refining Company et al. v. The First National Bank of Canon City.
    1. Practice in Civil Actions — Bills and Notes — Presentment for Payment — Burden of Proof — Matters of Defense — Pleading.
    3 Mills’ (Rev.) Stats., § 245m (Sess. Laws ’97, p. 225), provides that presentment for payment is not necessary in order to charge the person primarily liable on the instrument, but if the instrument is, by its terms', made payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. Held, in an action on a note payable at a specified place, that a demand need not be averred or proved, and, if the maker was ready and offered at the time and place to pay it, this is a matter of defense to be pleaded and proved by him. — P. 121.
    2. Bills and Notes — Payments—Affirmative Defense — Pleading.
    In this jurisdiction payment is an affirmative defense and must be specially pleaded. — P. 122.
    3. Appellate Practice — Frivolous Appeal — Penalty.
    Where appellants have abused their right, or privilege, of appeal, have needlessly consumed the time of the appellate court with a question previously settled in this jurisdiction, and have vexatiously delayed and harassed appellee in the collection cf a conceded debt, the appellate court should impose a penalty. —P. 123.
    
      Appeal from the District Court of Fremont County.
    
    
      Hon. Morton 8. Bailey, Judge."
    'Action by Tbe First National Bank of Canon City against Tbe Florence Oil and Refining Company and Ella L. G-umaer. From a judgment for plaintiff, defendants appeal.
    
      Affirmed.
    
    Mr. James T. Locke, for appellants.
    Mr. Chas. E. Waldo and Mr. Clyde C. Dawson, for appellee.
   Mr. Justice Campbell

delivered tbe opinion of tbe court:

Tbe First National Bank of Canon City, as payee, brought suit against tbe defendants, makers of a promissory note executed at Florence, Colorado, and made payable at tbe First National Bank in tbe city of Denver. The answer was a general denial only, containing no affirmative defense. At the trial before the court, without a jury, judgment for the amount of the note and interest was given to plaintiff, and defendants appeal.

The only ground argued for reversal is, that the complaint did not aver, and the evidence did - not show that, before bringing the action, the note was presented for payment at the bank in Denver, where it was specifically made payable.

In the courts of England and Canada it seems that, 'where a note is specifically made payable at a certain place, there must he allegation and proof that, before the bringing of the action, presentment for payment was made and refused at that place. The leading case is Rowe v. Young, 2 Brod. & B. 180. The only authorities from the courts of this country cited by appellants in support of that doctrine are Mellon v. Croghan, 3 Mart. N. S. 423 (S. C. 15, Am. Dec. 163), decided in 1825; and Allain v. Lazarus, 14 La. 327 (33 Am. Dec. 583), decided in 1840.

Counsel for appellant, however, failed to call to our attention the later case in the same court, decided in 1850, Squier v. Stockton, 5 La. Ann. 120 (52 Am. Dec. 583), in which these two earlier cases were overruled. The overwhelming weight of authority in this country is, that, in an action against the maker of a note, payable at a particular time and place, a demand need not he averred or proved. If, however, the maker was ready, and offered, at the time and place to pay it, this is a matter of defense to he pleaded and proved by him.

The proposition is thoroughly considered in Wallace v. McConnell, 13 Pet. 91. Other authorities are collected in 7 Cyclopaedia of Law and Pro., 963 et seq.

Before this note was given and the action begun, our court of appeals, in Westcott v. Patton, 10 Colo. App. 544, announced the same doctrine with its approval. Our general assembly, in 1897 (Sess. Laws 1897, 225), has expressly said that: “Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but, if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part.”

In this jurisdiction, payment is an affirmative defense, and must be specially pleaded. — Perot v. Cooper, 17 Colo. 80; Esbensen v. Hover, 3 Colo. App. 467; Thomas v. Carey, 26 Colo. 485, 495.

Such being the state of the law generally' in the United States, and particularly in Colorado, both'by judicial decision and .legislative enactment, it would seem that the objection raised upon this appeal is entirely without merit, that the appeal is frivolous, and taken solely for delay. We can reach no other conclusion than that appellants have abused their right, or privilege, of appeal, have needlessly consumed the time of this court with a question previously settled in this jurisdiction, and vexatiously delayed and harassed appellee in the collection of a conceded debt, for which an appellate court, in” administering justice, should impose the penalty. Rohrig v. Pearson, 15 Colo. 127, is authority for the power of an appellate court to impose a penalty for frivolous delays.

The judgment will be affirmed, and a penalty of ten per cent, of the amount of the judgment imposed, because of the frivolous appeal. Affirmed.

Chief Justice Gabbert and Mr. Justice Steele concur.  