7 Colo. 451 | Colo. | 1884
We do not regard Sullivan and his asso- ■ dates as occupying the relation of parties to this litigation. Their interest in the result accrues by virtue of their contract with Atkinson and Chaney, the appellants. If, by virtue of the terms of that contract, Sullivan and his associates drew out and appropriated to their use, or with the intention of so appropriating it, three-fourths of the money deposited by Tabor and Smith in the Bank of Leadville in payment of the purchase money of the Tam O’Shanter group of mines, it was the same in law as if Atkinson and Chaney had drawn the money themselves; and it would be a waiver of their right further to prosecute the appeal. If, however, money and securities to an amount covering the contingent interest of Sullivan and others in the deposit were drawn out of the bank on account of its failing condition alone, and after Tabor and Smith had declined to agree to á change of the deposit to a place of greater safety pending the result of the litigation; and if there was no actual appropriation of such portion of the deposit, and none. was intended, but the action complained of was taken merely to secure from the impending disaster that proportion of said deposit to which Sullivan and his associates might become entitled, under their said contract, by the judgment of this court, it would seem to be extending the doctrine of waiver beyond the precedents cited, to hold that the right of the appellants to further prosecute their appeal is thereby cut’off.
Some of the alleged facts concerning the purpose and
Motion denied.
