Opinion
Aug. 8, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Long, Jaudon & Johnson, James A. Dierker, Denver, for plaintiff-appellant.
No appearance for defendant-appellee.
SILVERSTEIN, Chief Judge.
Plaintiff appeals from a judgment dismissing its complaint, entered at the close of plaintiff's case in a trial to the court. We reverse.
Plaintiff sued to recover $3,000 paid to defendant pursuant to an 'Agent's Loan Agreement' which obligated the defendant to repay loans made thereunder either from commissions earned or by direct repayment. Defendant, by answer, denied liability. The plaintiff served defendant with requests for admissions pursuant to C.R.C.P. 36. Defendant neither replied to the requests nor objected thereto, nor requested an extension of time to reply. Prior to the trial the requests for admission were filed in the court record.
At the trial defendant admitted his execution of the agreement, and receipt and negotiation of three checks from plaintiff totalling $3,000. He was not asked at trial if demand for repayment had been made or if any of the $3,000 remained unpaid. The trial court ruled that plaintiff had failed to show that any debt was due and owing, and therefore dismissed the case. In so doing, the court completely ignored the request for admissions and the effect of defendant's failure to reply there to. This was error.
In McGee v. Heim, 146 Colo. 533, 362 P.2d 193, our Supreme Court said,
'(W)hen one fails to properly reply to requests for admissions, for the purpose of trial, those statements made in the request will be deemed admitted. (citing cases). We thus must accept as admitted the facts set forth in plaintiffs' requests for admissions.'
Further it was not necessary for the plaintiff to offer the requests for admissions into evidence in order for them to be considered by the court. In Sakal v. Donnelly, 30 Colo.App. 384, 494 P.2d 1316, we stated,
'A court may take judicial notice of any matters in its own records and files. (citing cases). The admissions were filed with the court prior to trial and were before the trial judge during the trial. It was unnecessary under these circumstances for the admissions to be formally offered and received into evidence during the trial before they could be considered by the trial court.'
The plaintiff's 'Requests' asked defendant, among other things, to admit that the $3,000 was paid pursuant to the loan agreement and that none of the $3,000 had been repaid. By his failure to reply, defendant admitted these facts. Since the admission was already before the court, it was unnecessary for plaintiff to seek further admission of the debt, from defendant.
It was also unnecessary for plaintiff to question defendant relative to demand for payment. The loan agreement, which was admitted into evidence, showed on its face that no time for repayment was stated. The obligation was therefore due on demand, Thompson v. Hilleweart, 137 Colo. 107, 321 P.2d 623. Recovery may be had on a demand instrument without a formal demand, since the filing of the suit constitutes the demand. Thompson v. Hilleweart, Supra.
The evidence, including the admissions, established the making of the loan, the obligation to repay, and the failure of repayment. Thus plaintiff had proved a prima facie case and the dismissal was error.
The judgment is reversed and the cause remanded, with directions to reinstate the complaint, and for a new trial.
ENOCH and PIERCE, JJ., concur.