DocketNumber: No. 1977
Citation Numbers: 18 Colo. App. 122
Judges: Thomson
Filed Date: 9/15/1902
Status: Precedential
Modified Date: 9/7/2022
What became of the original suit we are not advised. Only the record relating to the controversy
The following is the contract on which the appellees base their claim:
“This agreement, made and entered into this 10th day of June, A. D. 1895, between W. J. Wolfe, J. S. McCullough, Andrew Scheff and Viola A. Duckett, parties of the first part, and Alexander Gullett and S. D. Crump, parties of the second part, witnesseth: That for and in consideration of the sum of five thousand dollars, to be paid as hereinafter provided by the said parties of the first part to the parties of the second part, it is hereby agreed by and on the part of the said parties of the second part to do and perform all legal services in connection with the title of the said first parties in that mining property known as the Mammoth Chimney lode mining claim and the Good Hope lode mining claim situate in Domingo mining district, county of Gunnison and state of Colorado, and said parties of the second part are to act as counsel and attorneys for the said first parties, jointly and severally, in all litigation which may arise in any way affecting the title of the said first parties to said mining claims, or either of them, or affecting the title of any one of the said first parties thereto; and are, in all matters pertaining to said title and the rights of the first parties, to protect, to the best of their ability, the same and all the ground included within the territory now comprised within the boundary lines of said locations. It is agreed on the part of the first parties hereto that said sum of $5,000, to wit, twenty-five hundred dollars to each of the said second parties, shall be paid as follows: Ten per cent, out of all payments to be made to the said first parties on the purchase mone}^ of said Mammoth Chimney lode; and when the final payment of said purchase money shall be made, then the balance of said $5,000 shall be paid; it being understood that in case the bond and option
‘ ‘ In witness whereof, the parties have hereto set their hands and seals the day and year first above named. The obligations herein are to continue until said first parties shall have disposed of both of said mining claims.
“Wm. J. Wolfe. (Seal.)
“J. S. McCullough. (Seal.)
“Andrew Scheff. (Seal.)
‘ ‘ Viola A. Duckett. (Seal.)
“S. D. Crump. (Seal.)
“Alexander Gullett. (Seal.)”
The evidence was that Mr. Weiss obtained the money to purchase Wolfe’s interest from Mr. Wallace, who was a banker at Monte Vista, giving Wallace a note for the amount, signed by himself and his brother, and securing payment of the debt by causing the deed to be made to Wallace. Of course the deed amounted only to a mortgage. It is claimed that Weiss and Wallace both had knowledge of the contract; and it is inferable that the charge of. fraud is based on the supposed fact of such knowledge. We have discovered nothing else which might serve as an
Two contingencies were contemplated by the contract — one, the purchase of the property by Spinney under an option held by him and the other a forfeiture of the option and a sale to some other person. It was conceded on the oral argument by counsel for the appellees that so far as the first provision was concerned, the language employed amounted only to a personal covenant of the proposed vendors that they would pay the appellees after the purchase money should be received by them; but that, by the language of the second, an interest in the purchase money to the extent of the amount owing to the appellees, was tranferred to them. The option was forfeited, and a sale was made to another person, namely, Weiss; and it is contended that their interest attached to the fund in his hands, or in the hands of Wallace, who advanced the money and to whom the legal title was conveyed. The following is the phraseology on which counsel rely in support of their contention: “And the said parties of the second part are to receive and be interested in the purchase money on said mine to the extent of said $5,000.” What this clause was intended to mean must be found in the entire sentence of which it is a part. The sentence begins with an agreement, “that in case said option shall not be taken up, then the parties of the second part are to be paid out of the purchase money to be received for said Mammoth Chimney lode, the said sum, in the
We have confined ourselves to a discussion of those two special agreements, because counsel have done so; but the question which has been raised is settled by the statement, at the very outset of the instrument, of the consideration for the services to be rendered by the appellees. That consideration was, “the sum of $5,000, to be paid as hereinafter provided, by the said parties of the 'first part to the parties of the second part.” The subsequent provisions referred to, being the two agreements which we have noticed, simply designate the fund out of which payments were to be made, and the proportions from time to time payable; but when the contingency should arise upon which they were payable, it was from the parties of the first part that payment must come. That the money was to be paid out of a fund gave the appellees no interest in the fund until it should come into the possession of the other parties. When the latter should receive it, and not before, the claim of
The judgment will be reversed and remanded, with instruction to dismiss the cross-complaint.
Reversed.