1 Colo. 256 | Colo. | 1871
This was an action of assumpsit founded on the following note and agreement in writing:
“Four months after date, for value received, we jointly and severally promise to pay J. E. Barber, or order, $600. Signed, Wm. S. Rockwell, Hazen Cheney. October 3,1868.
“ In consideration of the above sum being without interest we promise and agree that should Wm. S. Rockwell, one of the signers hereto, effect a sale at the east or elsewhere, of certain mining property on the Bobtail lode, and receive his pay therefor, then we will pay an additional $600. Signed, William S. Rockwell, Hazen Cheney. (Seal.)”
It is alleged in the complaint that, on the 3d day of October, 1863, the plaintiff Barber, together with certain other parties, were the owners of certain mining property situated in Gilpin county and known and described as the east sixty-six and (2-3) two-thirds feet of claim number one east, and the west twenty feet of claim number two east on the Bobtail lode. That, on the day aforesaid, William S. Rockwell applied to the plaintiff for a power of attorney from him, authorizing Rockwell to negotiate a sale of the interest of the plaintiff in said property, and also, at the same time, applied to plaintiff for the loan of $600 in money for his own benefit. That thereupon it was agreed between Rockwell and Barber that the plaintiff would loan and advance to Rockwell the sum of $600, and also empower him to sell and convey the interest of the plaintiff in the property above described, on the condition that Rockwell and Cheney should make a joint and several promissory note to the plaintiff (being the one above set
The plaintiff, to maintain his action, offered in evidence the note and agreement, to the introduction of which the defendant objected, “ because said note and agreement have been altered by substituting the name of a different payee, and that the date of the said note has been changed since the same was executed.” Which objections were overruled by the court, and this is the first error'assigned. We have no data before us by which the tenability of these objections can be determined. There is no evidence before us, that these objections urged by counsel existed; in fact, the execution of the papers is admitted, and we are asked to conclude that the instruments offered in evidence were altered upon the simple ground that the counsel so stated when they were offered in evidence. Had the originals been attached to the bill of exceptions, we might derive some light from an inspection, but this is denied us. Neither the originals, nor any evidence showing the alleged alteration, have reached this court. The general rule is, that the material alteration of an instrument, made by a party who claims the benefit of it, without the consent of the party against whom it is sought to be
It is claimed by the appellant that the contract sued on is an entirety in law ; that it contains but one agreement as to payment and time of payment, the latter being four months after date, the amount to be paid four months after date to be either $600 or $1,200, depending on the happening of an event, being the sale of certain mining property. It is very clear that the first instrument sued on is a contract to pay $600 four months after date. This payment depends on no contingency and hinges on no condition. ' It is an absolute promise to pay, and, at maturity, the plaintiff might have instituted legal proceedings to enforce its collection, omitting, at the same time, any mention or notice of the contract which immediately followed it.
In the second contract it is stipulated that, as no interest has been charged for the loan of the sum secured by the promissory note, Rockwell & Chenqy will pay $600 more to Barber, should Rockwell succeed in selling the mining prop
We are, therefore, of the opinion that, upon a sale being made, Rockwell & Cheney became liable for the additional $600.
It is further contended by the appellant that there is no evidence showing that a sale was made by Rockwell. It will be observed that the contract fails to describe specifically the property to be sold. It was on the Bobtail lode, but what particular portion of it?
To entitle the plaintiff to recover, he must show that the property, concerning which the contract was made, was sold by Rockwell. To prove a sale, he introduced in evi. dence a deed made by Rockwell as attorney in fact of Barber and others to Gfeorge A. Hoyt. Conceding that this deed was properly admitted in evidence, there is nothing in the record showing that the land described in the deed was the same about which this contract was made. If left to enter the domain of inferences, we might conclude that the property was-the same, but the plaintiff, to recover, must rely on something better than inferences. It was in his power to prove this fact, and he should have done so. The testimony of Lyon throws no light on this branch of the subject-, and the statement in Rockwell’s letter is entirely too ambig
This cause is therefore reversed and remanded for a new trial, at the costs of the appellant.
Reversed.