Opinion
Oct. 6, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Harvey P. Wallace, Denver, for plaintiff in error.
Hellerstein & Hellerstein, S. A. Hellerstein, F. J. Manning, Martin H. Shore, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
In this action on an assigned account for goods sold and delivered, plaintiff, Commercial Credit Corporation, obtained a judgment in the amount of $3,486. The defendant, Color Tile of Colorado, Inc., appearing here as plaintiff in error, seeks reversal.
The account sued on was owed by defendant to plaintiff's assignor, United Adhesive Manufacturing, Inc., (United). Defendant conceded both the validity of the assignment and the amount of the assigned account. The issue on appeal concerns defendant's right to set off a debt allegedly owed to it by United.
United, in connection with its operation, occupied a building under a written lease. When this lease was executed, the lessor required and obtained the personal guarantee of Myron F. Seeberg, who was president of the defendant corporation. The defendant corporation did not guarantee the lease. Sometime after the lease was executed, United defaulted on the lease and later declared bankruptcy. The lessor demanded that Seeberg, as guarantor, pay the balance of United's obligation under the lease. However, the defendant corporation, although not itself a guarantor, paid the rent.
Before defendant would be entitled to a setoff, it must establish an independent claim or cause of action against the assignor. Sterling Contruction Co. v. Humboldt National Bank, 10 Cir., 345 F.2d 994. It appears from the record that defendant, by corporate resolution, retified Seeberg's action in guaranteeing the lease. This resolution may have created certain obligations between the corporation and its president. But, as the trial court properly held, such resolution did not obligate the corporation as a guarantor of the lease and the defendant's payment of the rent in these circumstances did not create an actionable claim against United. Thus, defendant failed to establish that it had an actionable claim against the assignor and therefore no setoff against the assignor's claim was available to defendant.
The judgment is affirmed.
ENOCH and PIERCE, JJ., concur.