32 Colo. 463 | Colo. | 1904
delivered the opinion of the court.
This action was originally brought in this court by The Gordon-Tiger Mining & Reduction Company, and entitled: “The Gordon-Tiger Mining & Reduction Company, Plaintiff in Error, v. John T. Keegan et al., Defendants in Error.” Thereafter the death of S. P. Brown, one of the defendants in error, was suggested, and motion made that his administrator be substituted in his stead, and that such administrator, as well as the other defendants in error, except Keegan, be permitted to be made plaintiffs in error. The motion substituting the administrator in place of the deceased, and to allow him to be made a plaintiff in error, was sustained, but no order seems to have been entered permitting the others to be made plaintiffs in error, as requested in the motion. Subsequently the parties filing this motion filed an abstract of record based in part upon a transcript of record other than that originally lodged by the Gordon-Tiger company. By this abstract those who had been designated defendants in error, except Keegan, were named as plaintiffs in error, except that the administrator was substituted in place of S. P. Brown, deceased. This abstract also contained what purported to be a copy of the assignment of errors on the part of those then appearing as additional
Prom affidavits and other facts called to our attention in support of the motion for leave to file the supplemental or amended transcript, we are convinced that it was, in fact, lodged with the clerk of this court not later than the date the plaintiffs in error filed their printed abstract of record and assignment of errors, and that through some oversight the clerk neglected to mark the same filed, or note the filing on the docket. It has been in the office of the clerk ever since that date. The abstract of
Defendant in error brought an action against the plaintiffs in error, except the Gordon-Tiger company and the administrator of the deceased, S. P. Brown, to recover brokerage commission. He supplemented this action by suing out an attachment under which The Gordon-Tiger Mining & Reduction Com
Plaintiff testified that the property had been placed in his hands for sale at the price of $250,000; $75,000 of which was to be paid in cash, and the remainder in installments at certain fixed periods. Out of the first payment he was to receive his commission of $25,000. He procured one Daniel C. Murphy, with whom S. P. Brown entered into a contract, which provided that Brown was to convey the property to Murphy, or such corporation as he might designate, upon the following terms: Murphy, or the corporation, by a date designated, was to discharge certain liens against the property, approximating the sum of $60,000, the remainder of that sum, if any, after the liens were discharged, to be paid over to Brown. Possession of the property' was to vest in Murphy or the corporation. From the operation of this property a certain percentage of the profits was to be paid Brown until the sum thus paid, in connection with the $60,000, equalled $200,000. When this sum was thus paid, conveyances were to be delivered. It was also provided that if Murphy or the corporation, after working the property, should determine that it could not be operated at a profit, then the prop
According to his complaint, the plaintiff was to effect a sale of the property. According to his testimony, he was authorized to sell the property for the sum of $250,000; $75,000 of which was to be in cash, and the remainder at stated periods. Upon such sale being effected, he was to have a commission of $25,-000. The agreement entered into between the owner and Murphy was not a sale of the property on the terms and conditions either stated in the complaint or by the plaintiff in his testimony. 'There was no sale. The agreement between Brown and Murphy, upon which the plaintiff relies to recover his compensation, provided that on the payment of $200,000 in the manner therein specified, the title should be conveyed to Murphy or such corporation as he might designate. Whether the proposed purchaser was bound to pay the $60,000, or any part thereof, is- immaterial; for it is clear that as to the remainder of the purchase price, namely, the sum of $140,000, the payment was not only entirely optional on the part of Murphy or the corporation, but contingent upon its being produced in the way of profits through the
The judgment against the original defendants is clearly erroneous, and it follows, of course, that judgment should not have been entered against the garnishee. The judgment of the district court as to the defendants and the garnishee is reversed, and the cause remanded for a new trial.
Judgment reversed.