31 Colo. 292 | Colo. | 1903
delivered the opinion of the court.
This is an appeal from a judgment dismissing an action, upon plaintiff’s election to stand by her complaint to which defendant’s demurrer had been sustained on- the ground that not sufficient facts were therein set forth to constitute a cause of action. The principal defendant is J. A. Jeannotte, and as the case of his codefendants stands or falls with his, we shall, for our present purpose, consider the action as one against him alone.
The object of the suit is to have defendant adjudged a trustee of an undivided one-eighth, interest in the M. N. lode mining claim, which, as it is said, was acquired in fraud of plaintiff’s rights. The complaint is unnecessarily voluminous. The same facts are often repeated. Matters purely evidentiary are pleaded, and in many particulars ambiguous and uncertain averments are made. One of the grounds of the demurrer is, that the complaint is ambiguous and uncertain, hut, as there are no specifications thereof, as our code requires, the court properly disregarded it. Had seasonable objections been taken by motion or
Defendant’s counsel in his brief has concisely stated some of the material allegations of the complaint, which we supplement by reciting other allegations equally important, but which learned counsel has omitted. That pleading charges that in August, 1897, plaintiff and defendant Jeannotte were jointly interested with other persons in a mining lease on the M. N. lode mining claim, theretofore and on December 15, 1896, executed, to run for one year, and with these others were also co-obligees in a title bond, executed on the same day, and for the same terms, on the property given thereon by three joint obligors. The purchase price fixed by the title bond was $1,500 to be paid on or before one year after its date, and the bond was also conditioned upon a compliance by the obligees with the terms of such lease; the two instruments constituting one entire contract.
After the obligees entered into possession of the property under the terms of the lease and had worked the same thereunder for about eight months, and when the lease and bond had still about four months to run, the plaintiff, on account of ill health, was obliged to leave the city of Leadville, near which this mining property was situate, and went to the state of Montana. Before leaving she appointed her cotenant Jeannotte her agent to take charge of, and look after, her interests in the working and operation of the bond and lease, and Jeannotte accepted the agency and agreed with plaintiff that he- would take charge
The complaint, further states-that plaintiff believed such promises and implicitly relied thereon; and that, for a while, defendant performed his obligations and saw to it that the property was worked and developed in accordance with the terms of the lease until about the 23d day of September, 1897, when, for the first time, disregarding his duty, he conspired and confederated with his co-defendants to cheat and defraud plaintiff out of her interest in the mine by virtue of the terms of the lease and bond, and in pursuance of the conspiracy applied to one of the three co-obligors of the bond to purchase, and he did purchase from him, an undivided three-eighths interest in the mine, paying therefor at the rate which the obligees had agreed to pay underdhe terms of the title bond, and that this deed was obtained from the grantor solely and entirely by reason of the performance of the conditions of work and labor re
The complaint then alleges that, in further pursuance of the conspiracy, and jto carry out the fraud perpetrated by him, defendant ceased to correspond with, or advise, her with reference to what he had unlawfully done, and she was unable, until a short timé before the beginning of the suit, to get any further information from him, when she learned, long after the option and the bond had expired, and after it was too late for her to enforce its terms, of the fact that defendant had acquired the three-eighths interest in the property. That this purchase by defendant was made while the title bond and lease had more than three months to run, and the purchase was made by virtue of, and in compliance with, the terms of that bond, and that the three-eighths interest so purchased by defendant included the one-eighth interest which plaintiff was entitled to receive by virtue of her rights in the premises, and there are repeated allegations in the complaint that defendant in such purchase and the procuring of the deed therefor, in his own name, acted in truth as her agent and trustee.
It is also alleged that before the beginning of the action and within the proper time plaintiff tendered to defendant in lawful money of the United States the entire sum which defendant has paid out or expended for or on account of the interest in the mining claim which the plaintiff claims belongs to her, and a refusal by the defendant to make conveyance of the same.
1. Prom the summary of the allegations of the complaint, as made by counsel for defendant, he argues that the court was right in sustaining the de■murrer because no cause of action was stated. That
If the summary, as made by defendant, included all the material allegations in the complaint, there might be some reason for saying that the pleading is fatally defective. That the contract embraced in the title bond is entire and indivisible might be a reason
It is not true that she was dealing at arm’s length with her cotenants. Persons in possession of property, as these parties were, as cotenants owe a duty to each other, and one must not take undue advantage of the other. It is, moreover, alleged in the complaint that plaintiff appointed defendant her
Taking all of these allegations together, it is clear, assuming them to be true, as for the purposes of the demurrer we must, defendant has violated his duty to plaintiff, and has acquired this property which, had it not been for his acts, the plaintiff would, or might, have received. To say the least, there is sufficient in the complaint to warrant the declaration that defendant acquired this interest in the mine while he was acting ás the agent of plaintiff, and that such agency, though there be some uncertainty about its scope, contemplated the procuring through his efforts, in part, of the very interest which he did acquire and now refuses to convey to her. There is also sufficient in the complaint to show that it was defendant’s duty as a cotenant to act in harmony with plaintiff, and he cannot be allowed to retain the one-eighth interest which he acquired, for their community of interest was such that this would constitute a fraud upon his beneficiary.
Reversed.