Jones v. Perot , 19 Colo. 141 ( 1893 )

Chiee Justice Hayt,

delivered the opinion of the court.

It is contended that the first cause of action upon which plaintiff relies is fatally defective by reason of the failure to plead the payment of $22,500, which, under the contract, the plaintiffs were to pay to the defendant Isaac Cooper. One of the conditions of the contract sued on required the parties of the second part upon the consummation of said exchange to surrender to said Cooper all the stock of said Roaring Fork Improvement Company received as bonus for the bonds so exchanged, and to release and fay over to him, said cash deposited with the Giuarantee Company. The performance of this condition on the part of plaintiffs is alleged as follows:

“ The plaintiff exchanged with said Cooper the said stock and bonds of The Roaring Pork Improvement Company held bjr them and deposited with The Guarantee Trust & Safe Deposit Company of Philadelphia in the state of Pennsylvania $25,000 in cash, which was half of plaintiff’s holdings of the bonds of said Roaring Fork Improvement Company, and received in exchange therefor from said Cooper stock in The Pearl Mining Company on the basis of sixteen and two thirds dollars worth of the stock of said Pearl Mining Company for each dollar in bonds of The Roaring Fork Improvement Company, together with accrued interest thereon up to January 1, 1882, which interest amounted on the last named day and date to the sum of $8,325, which together with said $45,000 of bonds and said $22,500 in cash made the sum of $78,700, for which plaintiffs received from said Cooper $1,227,050 worth of the capital stock of The Pearl Mining Company, or what is equivalent thereto, $122,705 shares of the capital stock of said Pearl Mining Company; that 37,500 of said shares represents the $22,500 in cash so as aforesaid, paid over by plaintiffs to said Cooper, on which last named number of shares said Cooper ought under said contract to have annually paid to said plaintiffs said guaranteed dividend of three cents per share from the said 1st day of February, A. D. 1882, up to the present time.”

Of the foregoing it is to be noticed that it falls short of an allegation of performance of the condition of the contract by which plaintiffs obligated themselves to make a cash payment . to the defendant. Examining the pleadings for the purpose of ascertaining to what antecedent statement the words “ so as aforesaid ” refer, we find the only other allegation in reference to the payment of cash is, that the same had been deposited with the Guarantee Title and Safety Deposit Company of Philadelphia. This prior clause is not an allegation, nor equivalent to an allegation of the payment of the money to Cooper, and the subsequent clause, dependent as it is upon the prior clause and referring specifically thereto, amounts simply to an allegation of the deposit of such money with the Philadelphia Company. The complaint, therefore, fails to state a cause of action, in that it does not allege performance on the part of plaintiffs of one of the essential conditions imposed upon them by the terms of their contract.

A general demurrer to defendant’s third defense to plaintiff’s first cause of action was filed and sustained in the court below. In this defense it is alleged, among other things, that on the first day of May, 1882, Sutton and one D. H. Bradley and Isaac Cooper made and entered into a written agreement between them, in which agreement, among other things, it was expressly provided that the said Sutton and Cooper were joint owners and equal partners in and to all the capital stock and bonds of The Roaring Fork Improvement Company mentioned in plaintiff’s complaint, then owned or held by said Isaac Cooper, or that might thereafter be acquired by him, and also that all expenses thereafter incurred and outlays made by Isaac Cooper in the conduct of the affairs of The Roaring Fork Improvement Company were to be shared by Cooper and Sutton. It is also alleged that all the expenses accruing to Cooper under and in accordance with the terms of the agreement known as the dividend agreement, should he equally shared by Cooper and Sutton, and that such profits as might accrue by reason of the matters and things aforesaid should be equally divided between them, share and share alike, and that an equal division of the stock and bonds of The Roaring Fork Improvement Company should be made between them.

The court erred in sustaining the demurrer to this pleading. If the facts alleged are true, and they must be taken as true, as against the demurrer, the plaintiff Sutton had become jointly liable with defendant Cooper upon the agreement which constitutes the basis of the first cause of action as pleaded. The defense should have been permitted to stand, to the end that in this action the ultimate rights of the parties may be determined as between themselves as provided by section 222 of the Civil Code.

“ Sec. 222. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case-requires it, determine the ultimate rights of the parties on each side as between themselves.”

The judgment of the district court is bad in form, in that the administrator is personally charged, and also for the rea-, son the execution is awarded. In the event of a recovery by the plaintiffs, the judgment should be against the administrator, de bonis testatoris. Mills’ Ann. Stat., sec. 4793; Vance’s Heirs v. Maroney, 3 Colo. 293; Mattison v. Childs, 5 Colo. 78.

In view of a new trial, other errors assigned will be briefly noticed.

Although it is admitted that the estate of Isaac Cooper was in course of administration in the county court of Arapahoe county, at the time of the bringing of this suit, plaintiffs were not for this reason required to present their claims to that court for allowance. They could, at their option, bring suit in the district court in the first instance. Mills’ Ann. Stat., sec. 4792; Vance’s Heirs v. Maroney, supra.

The denials in the answer are as follows: The defendant, “denies any knowledge or information sufficient to forma, belief as to each and every allegation in the complaint, except as hereinafter admitted.” This form of denial is defect-, ive in that it does not contain a statement to the effect that defendant cannot obtain sufficient knowledge or information upon which to base a belief. From ought that appears, information might have been obtained upon the slightest inquiry, which would have enabled the defendant to either have admitted or denied in positive form the allegations of the complaint. Code, sec. 56; Haney v. The People, 12 Colo. 345.

. The district court, consistently with its ruling sustaining the demurrer to the amended third defense, rejected the proof offered of the alleged contract of May 1, 1882; hence such contract is not before us in this case in such form as to authorize further consideration.

The judgment will be reversed and the cause remanded, with directions to the district court to allow the parties to amend pleadings.

Reversed.