27 Colo. 506 | Colo. | 1900
delivered the opinion of the court.
James Doyle and others brought this action to enforce the specific performance of a contract. The principal defendants were Minnie E. Anderson and others, who are the appellees in this court. It was alleged that they entered into a contract with the plaintiffs by the terms of which they agreed to convey certain interests in mining property at Cripple Creek, and that they now wrongfully refuse to perform it. The appellants Burris and Brandenburg were named as codefendants, it being averred that they claimed some right or interest in the property adverse both to plaintiffs and their codefendants.
The appellees, as defendants below, filed their answer to the complaint, as did also the appellants. The latter admitted the making of the contract by plaintiffs and appellees as set up in the complaint, and also filed their cross-bill or cross-complaint- in which they set forth certain agreements, as constituting one entire contract, by the terms of which appellees agreed — before their contract with plaintiffs was made and of which the latter had knowledge — to convey to appellants the same property that is the subject-matter of the contract'set up in the complaint. Afterwards appellants filed what is called in the record an amended and supplemental cross-complaint, relying upon the same contract, to which appellees filed their separate answer and cross-complaint.
The case proceeded to trial upon the original complaint of Doyle and others and the answers of the different defendants, and upon the amended and supplemental cross-complaint of the appellants and the answer of appellees, thereto. All of the issues thus raised were tried at the same time. The
It appears from the record that the matters principally, if not exclusively, relied upon by appellees below to defeat the cause of action set up in the amended and supplemental cross-complaint of appellants were (1) that the contract relied upon was too ambiguous to be specifically performed ; (2) that appellants, failing to comply with the terms thereof to be by them performed, lost the right to specific performance ; (8) that the appellants fraudulently obtained from the appellees the contract in question, and for this reason it should not be enforced against them.
Upon all these questions urged by way of defense by appellees, the trial court found against them, but upon the ground that the authority of the appellees, who signed the contract, to act for the other appellees in whom the legal title stood, had not been established, relief was denied the appellants. This contract was not signed by those owning the property, but by the husbands and brother of the owners. The claim of appellants was that they signed it as the agents of the owners, and that the latter, after a full knowledge of the terms of the contract, ratified and approved the same, and acquiesced in and enjoyed its benefits.
The trial court held that there was no evidence, and no attempt upon the part of appellants, to show that the alleged agency existed, and for this reason alone entered a decree in favor of appellees.
At the close of the evidence the case was taken under advisement by the court, the respective counsel submitting briefs but not arguing the case orally, and at the .end of ninety days findings were made and a decree entered. We are persuaded that the learned trial judge overlooked the evidence of agency which ought to have been considered, and
In the exhaustive and able opinion handed down by the judge it is made very clear that the only defenses available to the appellees under the pleadings were not made out, and their conduct as characterized by him, which the record so signally manifests, is not such as to commend them to the especial consideration or tender care of a court of equity. Had the authorities touching the admission of the pleadings been brought to the attention of the trial court, and had there been oral argument in which the uncontradicted evidence could have been reviewed, we are satisfied that the findings and decree would have been in favor of appellants. This conclusion is reached after a careful examination of the voluminous record, and its correctness is obvious from the following:
Here was a distinct admission or affirmation under oath by all the appellees that the contract which was signed by some, was the contract of all of them. But appellees say that while this admission in the answer may operate in favor of plaintiffs, it cannot be availed of by appellants, for the latter were not concerned with the issues joined between plaintiffs and appellees, and in no event can an admission of this character be considered unless the pleading be formally introduced in evidence, which was not done below.
In Haraszthy et al. v. Shandel, 1 Colo. App. 137, a question exactly similar in principle was before the court. The cause originated in the county court where the judgment was for the plaintiffs against the defendant and an intervenor;
While a party may omit from an amended pleading, admissions contained in the original verified pleading, and while, for the purposes of the trial, the original pleading, as such, is out of the case, and though, in such circumstances, he is not bound by the statements of the discarded pleading, that is, he is not concluded by them, still, as in the case in hand, where it is a paper containing statements signed and sworn to, it is competent evidence in the first instance as against those making them, the same as oral admissions would be, subject, of course, to explanation so as to obviate its effect. Barton v. Laws, 4 Colo. App. 212, 216.
Furthermore, this verified answer of appellees to plaintiffs’ complaint was not discarded, and it continued a live pleading throughout the trial, and it was competent for the court to consider, as throwing light upon the issues under appellants’ amended and supplemental cross-complaint, any statements
The owners of this property, being a portion of the appellees, did not see fit to testify upon the trial, and we find no contradiction in the record, and our attention has not been called to any evidence negativing or casting doubt upon that part of the evidence, which, if true, clearly established the agency alleged. Upon this question, therefore, we are satisfied beyond any doubt that it was established. Indeed, a careful examination of the record shows that there was no intention at the trial upon the part of appellees to put it in issue, and the case was tried by all parties upon the assumption that it existed as alleged, and in their briefs prepared for the district court it is asserted, and not denied, that no claim was made that the agency was controverted and no point .made that proof of it was lacking.
The decree should, therefore, be set aside, canceled, and held for naught, and the cause remanded with instructions to the district court to enter a decree in favor of the appellants as against the appellees for a conveyance of the properties in question as prayed for in appellants’ amended and supplemental cross-complaint, and it is so ordered.
Reversed.