181 P.2d 459 | Colo. | 1947
THIS is an action for money had and received. From a judgment for defendant, this writ of error is prosecuted. The parties are designated as they appeared in the lower court.
The case concerns oil lands in the Salt Creek Oil Field, Natrona county, Wyoming, which were withdrawn from location and entry by order of the President of the United States in 1909. Shortly thereafter certain parties entered upon the lands and made locations, which were assigned to the Midwest Oil Company. In 1915, after extended litigation, the Supreme Court inUnited States v. Midwest Oil Company,
It is urged: (1) That the court erred in sustaining defendant's motion to set aside the verdict of the jury and entering judgment for the defendant; (2) that the court erred in not permitting the pleadings and prayer to be amended to conform to the proof; and (3) that the court erred in allowing a letter written by Bonfils to John T. Barnett to be introduced in evidence.
We are of the opinion that the judgment for defendant entered by the trial court was correct, (1) because plaintiff's cause of action was barred by the release in case No. A-2551, and (2) because he clearly ratified the settlement made. Inasmuch as this disposes of the case it will not be necessary to discuss the other points raised. These subjects will be considered in the order named.
[1-4] 1. Release. "The validity of this release depends, first, upon the fairness and good faith of its original execution; if these be wanting, or if there be sufficient evidence thereof to justify the submission of that question to the jury, then, second, upon plaintiff's ratification." *363 Colorado Springs Co. v. Huntling,
The release in case No. A-2551, supra, and on which said suit was dismissed with prejudice, was and is in words and figures as follows, to wit:
"Know all men by these presents that Mamie S. Rogers, Harley R. Rogers, Ethel Rogers Bowen, George Goff and Harry R. Rogers, their successors and assigns and each of them, for and in consideration of the sum of Seven Thousand Five Hundred Fifty-seven and 60/100 Dollars ($7,557.60) to them in hand paid, the receipt of which is by them severally and jointly acknowledged, do hereby release and discharge Helen G. Bonfils, J. Thomas L. Bonfils, Charles A. Bonfils, F. W. Bonfils, J. B. Grant, and The Denver National Bank, as Executors under the last will and testament of F. G. Bonfils, deceased; Boma Investment Company, a Delaware corporation; The Post Printing and Publishing Company, a Colorado corporation; Agnes R. Tammen; Plains Security Company, a Colorado corporation; Agnes R. Tammen, J. Ogden Armour, and The Denver National Bank, as Executors of the last will and testament of H. H. Tammen, deceased; The Denver National Bank and Agnes R. Tammen, as Trustees of the Children's Hospital Association of Denver, their successors and assigns and each of them, from any and all manner of claims, demands, damages, causes of action or suits that they might now have or that might subsequently accrue to them, or any of them, by reason of any matter or thing whatsoever, and particularly growing out of or in anywise connected with, directly or indirectly, that certain contract entered into on or about October 26, 1921, between Fred B. Rogers, Harry R. Rogers, George Goff, W. H. Patten and Henry A. Miller, and particularly and especially on *364 account of the matters and things set forth and alleged in the complaint and amended complaint in that certain suit entitled Mamie S. Rogers, Harley R. Rogers, Ethel Rogers Bowen, George Goff and Harry R. Rogers vs. Frederick G. Bonfils, the same being numbered A-2551 of the causes pending in the District Court of the City and County of Denver, State of Colorado, to which said complaint reference is hereby made for greater certainty.
"Further, the undersigned do hereby warrant and declare that Mamie S. Rogers, Harley R. Rogers and Ethel Rogers Bowen, are the widow and the sole heirs at law of the deceased, Fred B. Rogers; that the said deceased died on or about November 2, 1926, and no administrator was ever appointed for said estate, and that neither the next of kin nor any creditors have ever applied for said administration.
"It is the purpose of this release to forever settle, adjust and discharge all claims of whatsoever kind or nature that the undersigned have or may have against the parties heretofore mentioned, and it is agreed that the case of Mamie S. Rogers, Harley R. Rogers, Ethel Rogers Bowen, George Goff and Harry R. Rogers vs. Frederick G. Bonfils, the same being numbered A-2551 of the causes pending in the District Court of the City and County of Denver, State of Colorado, be dismissed with prejudice, each side to pay their own costs.
"Dated this 5th day of January, 1934."
At the time the release was signed Bonfils had been dead nearly a year and it was the result of negotiations with his executors who had been substituted as defendants. There is no evidence in this case of any fraud, deceit or misrepresentation on their part or any officers of Boma Investment Company practiced upon Goff or his associates in securing this settlement agreement and release. Seven thousand five hundred fifty-seven and 60/100 dollars was paid to Goff and other plaintiffs, the purpose being "to forever settle, adjust and discharge all claims of whatsoever kind or nature" issuing out of *365 the 1921 contract and involved in the 1932 accounting suit. In that suit plaintiff claimed that Bonfils had made distribution on the basis of one hundred twenty-five thousand dollars, when it should have been on the basis of one hundred forty-eight thousand dollars and he says that he "had in mind to recover the difference." All told, he was paid, including money from the settlement, five thousand nine hundred thirteen and 50/100 dollars, whereas 3.1 per cent of one hundred forty-eight thousand dollars would be four thousand five hundred eighty-eight and no/100 dollars. Evidently the settlement was a compromise.
"The plainest motives of expediency and justice require that he should be charged with all the knowledge which he might have obtained had he pursued the inquiry to the end with diligence and completeness." 2. Pomeroy's Equity Jurisprudence (3rd ed.) § 893. It will be noted that the release included Boma Investment Company, defendant herein, and the executors of the estate of F. G. Bonfils, deceased. This court in Guldagerv. Rockwell,
2. Ratification. If the foregoing conclusions were in *367
doubt, still plaintiff is barred from recovery because he clearly ratified the settlement made. This conclusion is fully supported by Colorado Springs I. Ry. Co., v.Huntling,
"By instruction No. 11 the jury was told that `even though you should find from the evidence that there were false representations made to the plaintiff, and that she was induced by them to accept the money and execute the release, yet if you should further find from the evidence that she failed to rescind the release with reasonable diligence after discovery of the fraud and to notify the defendant of such rescission, she cannot now set aside such release, and on such a state of facts your verdict must be for the defendant.'
"This is a correct statement of law, but inasmuch as this record conclusively shows that plaintiff did not rescind with reasonable diligence after she discovered, or ought to have discovered, the truth, there was no evidence upon which the jury could find for her under this rule.
"`After she had recovered her health and usual mental condition so as to render her capable of comprehending the settlement made, she was bound either to affirm or disaffirm, and if she did not elect to disaffirm at once, that is, within a reasonable time, she must be considered as having elected to abide by the settlement. And having once, by her conduct, affirmed it, she could not afterwards disaffirm it.' Chicago, St. P. K. C. Ry. Co. v.Pierce, 64 Fed. 293, 296, 12 C.C.A. 110, 113.
"At the close of the evidence defendant moved for a directed verdict upon several grounds, among others that there was no proof tending in any manner to avoid thebona fides of the release, and that the evidence conclusively showed that the plaintiff had fully ratified it. This motion was overruled. For the reasons given, it should *368 have been sustained. The judgment is accordingly reversed with directions to the trial court to enter judgment herein at the costs of plaintiff."
Plaintiff claims he first learned about the amount paid defendant, concerning which he complains herein, about May 1, 1934. He instituted this action August 2, 1939 — over five years and three months thereafter. This, it seems to us, conclusively showed that he had fully ratified the release.
The Judgment is affirmed.
MR. JUSTICE JACKSON formerly concurring, now concurs in the conclusion.