25 Colo. App. 140 | Colo. Ct. App. | 1913
delivered the opinion of the court.
- Charles Courtland Brown, an attorney-at-law, died in the city and county of Denver, October 25, 1908. Letters testamentary issued November 4, 1908; December 7th was fixed as claim adjustment day, and notice duly published. October 29, 1909, Gobin Stair filed in the county court, the. folio wing claim:
“Estate of C. C. Brown, deceased,
“To Gobin Stair, Dr.
“April, ’08. That C. C. Brown held in trust and converted the sum of Two Thousand Dollars belonging tp; Gobin Stair.......................$2,000
“Credit — Paid on above account............ 500
“Balance............................$1,500”
December 3rd notice pf the filing of said claim was served on the executrix. Trial was had December 17,
In the district court, immediately after the opening statement made to the jury by claimant’s counsel, which statement, by request of opposing counsel, was taken down .by the reporter, motion was made to dismiss the proceeding for the reasons, (1) no such account has been filed as required by law. (2) No notice of the filing of such claim was served on the executrix within one year after the issuance of letters testamentary. (3) There is a fatal variance between the claim as filed and the opening statement of counsel for claimant. This motion was overruled. The same objections were interposed to the introduction of evidence, and overruled.
Such further statements of the proceedings as are deemed necessary will he made in connection with the opinion ,on the errors assigned.
1. Appellant contends that the claim as filed does not comply with the provisions of law relative to the manner of exhibiting claims against estates; Upon its face, the claim as filed appears to he upon an account of one transaction only, consisting of a single debit of $2,000 for money received by Brown for the use of the claimant and converted to Brown’s own use, and a single credit of $500 paid thereon. Although inartistically drawn, it sufficiently states the demand under the statute making formal pleadings unnecessary in such probate matters. —Section 8002, Mills’ (1912), R; S., 1908, section 7212; It appears beyond controversy that the executrix knew of the claim. As the facts generally upon which it whs based were, and for a long time prior to its filing had
2. Appellant also contends that because no notice of intention to exhibit said claim was served by the claimant on the executrix until after the expiration of one year from the granting of letters testamentary, the claim was barred by the statute'of limitations, in support of which counsel cited Alvater v. First National Bank, 45 Colo., 528, 103 Pac., 378. That case is not controlling, inasmuch as it was based upon statutory provisions different from those which obtain and govern the proceedings in the present case. That opinion expressly states that the claim was barred by reason of the provisions of the fourth subdivision of section 4780, Mills’ Ann. Stats., which is as follows:
“Fourth. All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be exhibited within one year from the granting of letters as aforesaid, shall compose the fourth class; provided * * * all demands not exhibited within one year as aforesaid shall be forever barred, unless such creditor shall find other estate of the deceased no,f inventoried or accounted for by the executor or administrator, ’ ’ etc.
While it is not clear why that statute was held to be applicable in that case, it was probably so held because the administration of the estate was in process of settlement prior to the taking effect of the act of 1903, while the latter act was in full force and effect at the time of the issuance of letters testamentary in the instant case. By that act, section 4780, Mills’ Annotated Statutes, was repealed, and the following substituted for subdivision fourth quoted in the opinion, to wit:
“Fourth. All other debts and demands of whatsoever kind, without regard to quality or dignity, which shall be filed in the county court within one year from*145 the granting of letters as aforesaid, and thereafter allowed by the court, shall compose the fourth class, provided * * * all demands not filed within one year as aforesaid, and afterwards allowed shall be forever barred,” etc.
Under the former act it was held that a claim was not exhibited until notice given as provided in section 4784. That rule does not apply to the new section in which filing only is necessary within the year- to arrest the running of the statute.
3. Appellant’s counsel urge that the court erred both in denying appellant’s motion to dismiss the action upon the opening statement of plaintiff’s counsel and the motion to grant a non-suit at the close of his testimony, because, it is said, the opening statement, which, together with the claim filed, constitute the pleadings in the case in the district court, as well as the evidence introduced in support of the claim constituted a departure and variance from the cause of action stated in the claim itself; and for the further reason that the cause of action stated by counsel and established by his evidence, if any cause of action was proven, was to declare and enforce a resulting trust, which the probate court had not jurisdiction to try or determine, and for that reason jurisdiction to try the issues was not vested in the district court by the appeal. This contention was earnestly urged upon the oral argument, and Cree v. Lewis, 49 Colo., 186, 112 Pac., 326, and Marshall, Admx., v. Marshall, 11 Colo. App., 505, 53 Pac., 617, relied on, in addition to many other authorities cited in the printed brief.
There was.nothing in the opening statement made by counsel which necessarily constituted a departure or variance from the cause of action exhibited by the claim on file, and nothing whatever in said statement, nor in the evidence offered in support of the claim, showing a cause of action of which the county court could not take
Plaintiff claimed, and his evidence tended to show, that his father and he were attorneys for Mrs. Julia Smart in a suit pending against her in the district court of the City and County of Denver; that claimant’s father, being about to die, .advised his son to secure the services of said Courtland C. Brown, an experienced attorney, to assist in the case; that after his father’s death, the claim
, Under the facts which claimant’s evidence tended to prove, he had a right to sue in equity for an undivided one-half interest in the real estate, title to which Brown had wrongfully taken in his own name, or wrongfully retained after demand for conveyance; or, waiving the tortious act of Brown, sue for the value, of one-half of said real estate, or the amount of claimant’s fees which Brown had received and withheld. At common law, the action might have been in assumpsit, or in debt as for money had and received, upon the theory of a quasi or constructive contract. It was proven beyond any question, and we think is not disputed, that Brown was authorized to collect from Mrs. Smart the attorney’s fees which were due to Mr. Stair, whatever that amount might be, and which were payable in cash; that without Stair’s knowledge or consent, he accepted in payment of said fees a parcel of real estate, giving a receipt in Stair’s name as for a fixed amount in' cash, which he assumed to be the share to which Stair was entitled, thereby discharging the client from any liability for services performed by Stair. It is well settled that where the liability of the person from whom money was due has been discharged by payment to one .claimant who does not assert any hostile claim to the whole amount, another claimant who is entitled to a share in the money may maintain an action, for money had and received against the claimant so paid. — 27 Cyc., 859; Webb v. Morris, 64 Hun (N. Y.), 11, 18 N. Y. Suppl., 711. Upon these authorities, and for the reasons given, the claimant herein had the right to proceed against the estate as for money had and received, and the privity between the claimant herein and. Brown sufficient to support an action for money had and received results from the fact that Brown had retained
■ Prom the close analogy between constructive com tracts and constructive trusts may be drawn the reason for the well-settled rule that a person entitled to recover may elect to proceed in equity to declare and enforce the trust, or may waive the tort from which the trust ex delicto is raised, and sue in assumpsit for the value of that which has been tortiously taken, or, if not wrongfully
In Ainslie v. Wilson, supra, it is said:
“If an agent receives property for his principal, and there is no presumption that it has been converted into money, the action for money had and received will not lie; but if the agent appointed to collect a money debt should accept from the debtor in extinguishment, property as money, he would not be permitted to question this form of action.” (Assumpsit.)
In the instant case it has been shown that Brown received a conveyance of real estate in satisfaction of a money debt owing from their client to him and the claimant jointly and which was payable in cash, and that he gave his receipt for the same in the sum of $4,000 as for money paid and received; that so far as Stair was concerned, the said Brown was acting as his agent, whether considered as a partner in this single transaction, or under the power of attorney by virtue of which he professed to act, and, therefore, he ought to have been es-topped from questioning, as to form, an action brought by Stair to recover his share of the fee collected, and his executrix should now be so estopped; and further, the amount or value for .which the real estate was taken, as shown by Brown’s receipts, would be at least prima facie evidence of the amount of the joint fee so collected. By his settlement with Mrs. Smart in full for himself and his associate, and by tendering or paying to Stair the sum of $500, Brown admitted the right of Stair to share in the fees collected to that extent, but denied his right
Appellant insists that the evidence was not sufficient to sustain the finding of the jury; that, inasmuch as a resulting trust in realty was involved in one phase of the case at least, the character of the testimony necessary to sustain plaintiff’s claim for money value is the same, and governed by the same rigorous rule that is applied in establishing resulting trusts in real estate, namely, that it must be clear, certain, satisfactory, and, according to some authorities, conclusive; that it cannot be established by mere hearsay or circumstantial evidence, or evidence of the declarations of a party to a mere stranger to the transaction. Assuming, but not deciding, that to establish plaintiff’s claim for money had and received, the same character and amount of evidence is required as apply to a resulting trust, we think the evidence received is sufficient, and satisfies the rule, granting, of course, that the testimony of Mrs. Smart was given full credit by the jury, as it must have been. There is no reason apparent from the record why it should be discredited. The testimony of Mrs. Smart to statements made by Brown in her presence relative to the amount of the fee, and that it was to be equally divided between Brown and Stair, were not mere hearsay, or declarations of a party to a mere stranger to the transaction or in chance conversation such as is condemned by the supreme court of the United States in Purcell v. Pullman, 4 Wall., 515, 519, 18 L. Ed., 459, and LeRoy et al. v. Newton, 49 Colo., 490,
The instructions given, fully and fairly state the law of the case. No objection or assignment of error has been overlooked or regarded as abandoned. Finding no prejudicial error, and being satisfied that substantial justice was done, the judgment will be affirmed.
Affirmed.