Walling v. Warren
Supreme Court of Colorado
Appeal from District Court, Gilpin County. The declaration contained the common counts for work and labor done, for goods sold and delivered, for money loaned, etc. The defendant pleaded non-assumpsit, and a set-off.
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Appeal from District Court, Gilpin County. The declaration contained the common counts for work and labor done, for goods sold and delivered, for money loaned, etc. The defendant pleaded non-assumpsit, and a set-off. In the third plea referred to in the opinion, the defendant averred, that, October 1, 1872, he entered into a contract with plaintiff to furnish lumber for, and erect a dwelling-house in Central City for plaintiff, and that the amount to become due for said house should be applied in payment of any and all sums then due, or to grow due, to plaintiff, on account of any dealings…
1Opinion of the CourtWells, J.
The agreement set np in the third plea amounted to an undertaking by the plaintiff, that during the reasonable time allowed for the completion of the house, he would not bring his action for the moneys then due from the defendant, or for what might in the meantime accrue. It was of no greater effect certainly, than a covenant not to sue during the same time. But a covenant not to sue for a limited time was never held to bar an action brought in the meantime. The reason is, that if the defendant plead such covenant in bar and succeed upon his plea, the plaintiff will be precluded from bringing…
2Cases cited2 opinions
- Dermott v. JonesSupreme Court of the United States · 1865
- Guard v. WhitesideIllinois Supreme Court · 1851
3Cited by12 opinions
- Western Distributing Co. v. DiodosioSupreme Court of Colorado · 1992
- Morris v. HokosonaColorado Court of Appeals · 1914
- Lombard v. Overland Ditch & Reservoir Co.Supreme Court of Colorado · 1907
- State ex rel. Stock Inspection Commissioners v. NelsonSupreme Court of Colorado · 1924
- Boggs v. McMickleSupreme Court of Colorado · 1949
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