Colorado § 4-3-105 - Issue of instrument.

§ 4-3-105. Issue of instrument.

(a) "Issue" means:

(1) The first delivery of an instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person; or

(2) If agreed by the payee, the first transmission by the drawer to the payee of an image of an item and information derived from the item that enables the depositary bank to collect the item by transferring or presenting under federal law an electronic check.

(b) An unissued instrument, or an unissued incomplete instrument that is completed, is binding on the maker or drawer, but nonissuance is a defense. An instrument that is conditionally issued or is issued for a special purpose is binding on the maker or drawer, but failure of the condition or special purpose to be fulfilled is a defense.

(c) "Issuer" applies to issued and unissued instruments and means a maker or drawer of an instrument.

Source: L. 94: Entire article R&RE, p. 844, § 1, effective January 1, 1995. L. 2023: (a) amended, (SB 23-090), ch. 136, p. 531, § 21, effective August 7.

Editor's note: This section is similar to former § 4-3-102 as it existed prior to 1994.

ANNOTATION

Annotator's note. Since § 4-3-105 is similar to §§ 4-3-102 and 4-3-306 as they existed prior to the repeal and reenactment of this article, effective January 1, 1995, see the annotations under former §§ 4-3-102 and 4-3-106 in the 1992 replacement volume.

If a note is conditional no recovery can be had unless the condition has been performed or the performance waived. Abercrombie v. Bear Canon Coal Co., 86 Colo. 169, 279 P. 42 (1929); Bank of Kimball v. Rostek, 161 Colo. 584, 423 P.2d 579 (1967).

Evidence may be introduced to show that there was a conditional delivery of a check that has not been fulfilled where payee brings an action against the drawer, as such does not vary the terms of the written instrument, but shows want of an element essential to its character — unconditional delivery. Norman v. McCarthy, 56 Colo. 290, 138 P. 28 (1914).

Maker may show that note was never made or delivered unconditionally with the intention that it should be binding in all events according to its terms. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

A parol agreement made contemporary with the execution of a note that it is to be paid only from the maker's share of dividends of a corporate payee is a valid defense in an action on the note by an assignee after maturity. George v. Williams, 27 Colo. App. 400, 149 P. 837 (1915).

Applied in West Greeley Nat'l Bank v. Wygant, 650 P.2d 1339 (Colo. App. 1982).