58 Colo. 421 | Colo. | 1914
Lead Opinion
delivered the opinion of the court:
The basis of this contention is the ownership of stocks in sundry mining companies, which stood upon the books' of the companies in the name of Harry Hall, at the time of his death. Trial was to the court, which found that Hall gave, transferred and delivered to the plaintiff (the defendant.in error here) all stocks described in her complaint, the certificates for which had been endorsed by him; that the transaction constituted a gift inter vivos, but found against her as to the stocks,
The main issue made by the first pleading is, who was the owner of these stocks at the time of Mr. Hall’s death, which occurred very suddenly on January 29, 1909. The record discloses, that' for about fourteen years prior thereto, the plaintiff Minnie Barndollar, lived at his residence and acted as housekeeper (she was probably there prior to the death of Mrs. Hall, which occurred in 1896); that Hall left an estate valued at about $170,000 of which $117,000 was in real estate; that in the fall of 1903 Hall and Miss-Barndollar were starting on a strip to California when she placed, what purported to be, certain stocks in charge of Mr. and Mrs. Jones, then residing in the house with them; that the stocks were in a tin box, the contents of which the Joneses did not see, but were informed by Miss Barndollar, in the presence of Hall, that the box contained stocks belonging to her and that in case of fire these stocks should be saved, as they were all she had; that Hall, while hearing it, did not dispute this assertion, but joined in the conversation, and among other things said ‘Yes, for goodness sake save the stocks,
“Colorado Springs, Colo.,
May 1st', 1905.
This agreement entered into by H. Hall, of the 1st part and Minnie Barndollar, of the 2nd part, this 1st day of May, 1905, to-wit: The said Hall, in consideration of services rendered by Minnie Barndollar, has endorsed and left with Minnie Barndollar certain mining stock certificates, and in case of his death the said mining stock certificates are to become the property of Minnie Barndollar, and in the meantime if the stock should enhance in value, and she should decide that it would be advantageous to dispose of some of them, she is at liberty to do so,-and the proceeds, in case of my death, are to belong to Minnie Barndollar, and that it is my desire that all courts of law and equity so construe the above that the same shall in no case for want of legal form or otherwise be construed as that my relatives or any other person should possess or enjoy the above except and in the manner and for the uses hereinabove specified without any mental reservation or purpose of evasion.
Witness our hand and seal this 1st day of May, 1905. Witness
Bose Jones H. Hall, (Seal)
W. C. Jones Minnie Barndollar (Seal.)
(Made in duplicate)”
“Colorado Springs, Colo-.
This agreement entered into by' H. Hall of the 1st part, and Minnie Barndollar of the 2nd part, this 6th day of June, 1908, to-wit: The said H. Hall in consideration of services rendered by Minnie Barndollar, has endorsed and left with Minnie Barndollar certain mining stock certificates, and in case of his death the said mining stock certificates are to become the property of Minnie Barndollar to do with as she thinks proper, and the proceeds, in case of my death, are to belong to Minnie Barndollar, and that it is my desire that all courts of law and equity so construe the above that the same shall in no case for want of legal form or otherwise, be so construed as that my relatives or any other person should or shall possess or enjoy the above, except and in the manner, and for the use hereinabove specified, without any mental reservation or purpose of evasion.
Witness our hand and seal this 6th day of June, 1908.
Witness
H. Hall (Seal.)
Minnie Barndoll ar ,(Seal.) ”
Jones testified to a conversation with Hall about a week or ten days before his death, on the street, in which Mr. Hall said, “Do you know what I think I will do? * * * j keiigYe j wfil put this lot in Miss Minnie’s and Laura’s name; * * * I believe you ought to look after your friends first, * * * You know I have given all my stocks to Miss Minnie;” that they then talked about what could be done on the other end of the lot in the way of cheap buildings for rent, etc. The witness further states, that the stocks were discussed a great deal by
Mrs. Jones testified, that ostensibly Miss Barndollar occupied the relation of housekeeper, and was supposed to be paid for her services; that she did the washing and mending, tending to all those things. Witness further testified, that in the fall of 1907 she saw Miss Barndollar in the dining room in tears; that Hall asked the witness what the matter was; that she stated Miss Barndollar was dissatisfied with the arrangements about stocks; that it worried her; that the value of the stocks fluctuated, and inasmuch as he had this property in her name at one time, and it suits her better and satisfies her, why not do the same thing again; that he said she' ought to- be satisfied with them; that they would always represent about $30,000, and then if she did not have these stocks he had taken care of her in another way, which he did not tell the witness about; that later she told the plaintiff what he said.
Jones testified, that the first he saw of the stocks after Mr. Hall’s death was the evening thereafter; that it was in the plaintiff’s room at the Hall residence; that he went over the stocks to see what she had; that he next saw them after he and Mr. Grimes had been appointed administrators to collect, which was two or three days thereafter that the stocks were in a box which she brought down and unlocked; that they took them out of the box, making a list of them later that day; that all stocks referred to in the inventory as having been received from her were actually received from her, except 6,000 shares of Isabella, which Mr. Grimes testified were taken from the desk in the library or somewhere in the
‘‘ The weight of authority seems to establish the rule almost beyond controversy that the indorsement of an instrument of the character we are considering is not necessary as á matter of law to sustain a gift inter vivos or one causa mortis.”
This seems to be the generally accepted rule.—Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. B. A. 684, 21 Am. St. 758.
Counsel lay great stress upon the clause in the two instruments wherein they refer to endorsed stocks. They are but a part of the evidence upon the subject, and if thus intended at the time executed, there is evidence that the deceased had different understandings with the donee prior to his death. She was prohibited from testifying and the testimony pertaining thereto was limited to the statements of Mr. Hall, the actions of the parties and the instruments executed by him concerning
The judgment was against Jones and Grimes personally in damages for the conversion of the endorsed stock. It is urged, as they were acting in their official capacity, which fact was known to plaintiff, and as they received no personal benefit, but turned the stocks in as an asset of the estate, and as a part of it has since been sold by order of court as assets of the estate, that no judgment should have been rendered against them personally. . We agree with this conclusion. We are not unmindful of the common law rule that in an action at law trover will not lie against an administrator in his representative capacity for the conversion of a legacy, or for the wrongful disposition of a stranger’s property as a ■part of the decedent’s estate, but lies against him in person. This rule, however, necessarily involves conduct on the part of the administrator in violation of his duty as such and is not applicable here. It is merely the recognition of the general principle of .common law that a tort committed by an administrator is his individual • act, rendering him, and not the estate, liable. No ele
In Simpson v. Snyder, 54 Iowa, 557, 6 N. W. 730, the defendant, as administrator, took possession of and sold, as assets of his intestate, property owned by the plaintiff; held, that a judgment for the value of the property was properly rendered against him in his capacity as administrator. At page 558, the court says:
“The pleadings show that the property was taken and claimed by defendant as administrator, and that he sold the same as administrator. Defendant sets up no claim to the property in any other capacity. It appears, then, that the controversy1 is about property which the administrator claims belongs to the estate, and which he sold as administrator. He was chargeable, as administrator, with the proceeds of the property, and it is. very plain that the estate, and not the defendant, should pay plaintiff the amount recovered in this action. ’ ’
To the same effect in principle is Von Schmidt v. Bourn, 50 Calif. 616.
It does not follow that the action should be dismissed, although instituted against Jones and Grimes personally, they intervened as administrators as did the administrator who succeeded them. Pattison and Finlayson, as heirs, etc., were also allowed to intervene and prayed that they be decreed the owners of this stock, etc. In their intervention pleadings they set forth that Pattison was a sister, and sole heir at law of Hall, etc.; that Finlayson by virtue of a decree of the District Court of El Paso county, in a suit between her and Pattison et al., was decreed to be the owner of one-half of the real estate; that they jointly were the owners, and-entitled to the possession and enjoyment of the stock in suit, etc. They prayed for judgment decreeing ownership in them, etc. The plaintiff filed answers and cross complaints to the petitions of. the intervenors, in which she alleged that the intervenors Pattison and Finlayson entered into a written agreement -pertaining to the disposition of the assets of said estate, and a settlement of all contentions pertaining thereto, which agreement was in part for plaintiff’s benefit, wherein it was provided.
“3. Out of the personal estate of the said.Harry Hall the stocks and shares inventoried as belonging to Minnie Barndollar shall be considered to be her property, and the certificates relating thereto shall be delivered to her.”
The court held that this paragraph was not capable of specific enforcement because too ambiguous and uncertain. In this the court erred. The record discloses, that Mrs. Pattison was a sister and sole heir at law of the deceased; that Mrs. Pinlayson was a sister of bis wife, who died in 1896; that after his death she instituted a suit against Mrs. Pattison and others, wherein she set forth that Hall had acquired title to various parcels of real estate, the consideration therefor being furnished by his wife, under an agreement that he should only have a life interest therein, and by deed or will he would convey this property to the brother and sister of his wife, etc.; that the brother had since died, and that Mrs. Pinlayson was the sole heir at law of his wife, etc. The prayer was that the property be considered as held in trust for this purpose and title be passed accordingly. A stipulation for a decree was filed in that suit which disclosed, that an agreement had been entered into between Mrs. Pinlayson and Mrs. Pattison providing for a settlement and disposition after payment of expenses of all the assets of the estate between them, share and share alike, with the exception of the stock in suit. The paragraph above set forth was a part of this agreement and if susceptible of the construction claimed, the agreement then made disposition of the entire assets of the estate. A copy of the agreement was embodied in the stipulation, which provided for a decree of ownership of
The contention that the paragraph is meaningless, is not in harmony with the rules of construction to the effect that no part of a contract is to be rejected if capa-
Counsel make tbe further contention that the agreement is not of tbat class where a promise is made to one person for tbe benefit of another, where tbe latter may bring suit for its performance. They contend tbat tbe clause for Miss Barndollar’s benefit is not supported by any consideration, also tbat there is no promisor or promisee, and they ask, who promised, and who was promised, tbat Miss Barndollar should have tbe stock. They contend tbat there was no promise on tbe part of either of tbe parties to the agreement; that tbis paragraph is simply a recital. We cannot agree with tbis line of reasoning. Tbe contract must be considered as a whole, and when thus done tbe intention of tbe parties is clear. Tbe object was to settle all contentions pertaining to the entire estate, tbat was to tbe interest of both parties to tbe agreement, and while it is true in a sense tbat tbe promise of each was to tbe other, tbe promise of each was not only for tbe benefit of the other but was also for tbe benefit of Miss Barndollar. Prior to tbis settlement Mrs. Finlayson claimed the real estate; she bad instituted a suit to have it declared hers. Mrs. Pattison claimed tbe entire estate; she was made a defendant in the Finlayson suit. Miss Barndollar claimed tbe .mining stock. Tbe consideration for tbe Pattison promise to Finlayson. was Mrs. Pattison’s relinquishment of a part of her claim to tbe entire estate, the consideration for tbe Finlayson promise to Mrs. Pattison was Mrs. Finlayson’s relinquishment of her claim to a certain in-, terest in tbe real estate, for one of these considerations Mrs. Pattison promised Mrs. Finlayson tbat tbe stock should be considered to be tbe property of Miss Barn-
In Green v. Morrison, 5 Colo. 18, this court hold,
“A third party, for whose benefit a simple contract has been entered into for a valuable consideration, moving from the promisee, may maintain an action in his own name.”
This case is cited with approval in Moore v. First National Bank, 38 Colo. 336, 88 Pac. 385, 10 L. R. A. (N. S.) 1001, 120 Am. St. 120, 12 Ann. Cas. 268.
In Vol. 1 Parsons Cont., 7 Ed., page 497 it is said:
“In this country the right of a third party to'bring an action on a promise made to another for his benefit, seems to be somewhat more positively asserted; and we think it would be safe to consider this a prevailing rule with us; indeed it has been held that such promise is to be deemed made to the third party if adopted by him, though he was not cognizant of it when made.”
In Hendrick v. Lindsay, 93 U. S. 145, (23 L. Ed. 855) the court at page 148 quotes with approval from Pillman v. Van Mierop, 3 Burr, 1663, as follows:
*437 “Any damage or suspension of a right, or possibility of a loss occasioned to the plaintiff by the promise of another, is a sufficient consideration for such promise, and will make it binding, although no actual benefit accrues to the party promising.”
Other cases in point are:—Lehow v. Simonton, 3 Colo. 346; Miliani v. Tognini, 19 Nev. 133, 7 Pac. 279; Painter v. Kaiser, 27 Nev., 76 Pac. 747, 65 L. R. A. 672, 103 Am. St. Rep. 772, 1 Ann. Cas. 765; Sacramento Lumber Co. v. Wagner, 67 Cal. 293, 7 Pac. 705; Ferris v. American Brewing Co., 155 Ind. 539, 58 N. E. 701, 52 L. R. A. 305; Hansdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753; Zimmerman v. Zehendner, 164 Ind. 466, 73 N. E. 920, 3 Ann. Cas. 655; Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, 61 L. R. A. 509, 96 Am. St. Rep. 1003; Hare v. Murphy, 45 Neb. 809, 64 N. W. 211, 29 L. R. A. 851.
It is urged that plaintiff’s cross complaint constitutes a departure from -the original cause of action, and transfers it from an action in trover, to an equitable one, for specific performance; that it eliminates the original action at law by substituting an issue in equity conflicting with and differing radically from it, etc. As heretofore stated, the basis of the entire contention is, who was the owner of this stock. All parties who appear to be or who might be interested in any phase of any contention which might arise over it have voluntarily become parties to this action. Under such circumstances it would not only be-a sacrifice of substance to form to say that every phase of this contention ought not, in this action, to be determined’between the parties to it who are now in court, but to hold otherwise would be a long step backward in our modern system of procedure, without any reason therefor, other than possibly some cases cited as precedent, which adhere strictly to technical rules of
But regardless of this, upon account of their voluntary intervention, and the injecting into the suit of their claim of ownership of the property, she was entitled by cross complaint to. have that issue settled in this action. The Code says that the party against whom anything is demanded by the intervenor shall answer as if it were an original complaint. Had a suit been instituted against Miss Barndollar by the intervenors to secure these stocks, it would not be contended that she could not, by cross complaint, be decreed to be its owner and have judgment accordingly, etc. Being entitled to an.swer here the same as though it were an original complaint against her, there is no reason why she is not entitled to the same relief.
In a way this phase of the contention was in equity. One of the intervenors, Mrs. Pattison, was a resident of England; another, Mrs. Finlayson, of Georgia; they were before the court in this action, and in our opinion the
"We are not impressed with the contention that because the plaintiff instituted another action, wherein upon-other grounds she made claims to the entire estate of Mr. Hall, (which suit was thereafter dismissed) that her position therein was inconsistent with her claim here, to the extent that it would estop her from prosecuting this suit. No authorities have been cited which hold that the owner of property may lose title thereto by making claim to other property- along with it. Had the wife of the deceased made claim to his entire estate as sole heir at law in a suit wherein it developed that he had children living by a former wife, this would not estop her from making the contention that the husband, during his lifetime had made her a gift inter vivos of certain personal property found in her possession after his demise, and for that reason that it was not a part of his estate. ' The same principle is applicable here.
Reversed.
Decision en banc.
On Petition for Rehearing.
Counsel for plaintiffs in error urge that in any event our opinion should be modified, to the extent that the judgment to be entered should be confined to the intervenors, Pattison and Findlayson.; and for the stocks disposed of, it should only be for their value at the date of the execution of the Pattison-Finlayson agreement. We cannot agree with either of these positions. ' The intervention of the administrators as such was in order that they might resist the claim of the defendant in error to these stocks and the value, thereof, and was allowed at their request. They alleged that they had theretofore
Referring to the second contention, we adhere to our former opinion for the reasons therein stated. The defendant in error became the owner of the stocks under the Pattison-Finlayson agreement (if she was not before its execution), and for this reason was entitled to their possession at the date of the execution of this contract, but we cannot agree that her damages should be limited to their value as of that date. A demand therefor appears to have been made upon the administrators about December 7, 1910. This demand was refused. There is no evidence that all of these stocks were disposed of before this date or have ever been. The Pattison-Finlayson agreement bears date April the 12th, 1909. In the Continental Divide M. I. Co. v. Bliley, 23 Colo. 160, 46 Pac. 633, this court, in substance, said that while different rules appear to prevail in England and in some American states as to the correct measure of damages in- such cases, the tendency of modern decisions supported by the weight of authority sustains the rule that
The record does not show that all of the stocks have been disposed of, but there is nothing before us to show that they have not all been disposed of since the trial. The directions in the original opinion were upon the theory that a part of them could and would be returned, and while there would probably be no difference in the ultimate result, yet in the Bliley case, supra, this court treats stocks as being converted, when the owner, being entitled --to its immediate possession, demands the same and is refused. This seems to be the general rule and after further consideration we are of opinion it should be followed here and this case disposed of upon the theory that all of those stocks were converted at the time of the demand for them and the refusal to comply therewith. The directions in the original opinion will be modified accordingly.
The petition for rehearing is denied.
Dissenting Opinion
dissenting.
I do not doubt the power of the court to recall its remittitur, at least within the term at which the judgment was rendered, in case where an order or judgment
I agree that the judgment in this case should be in favor of Barndollar, and this because of the agreement between Pattison and Finlayson, but I cannot a'gree that the measure of damage allowed can be sustained upon any theory, and for such reason the judgment should be corrected in that respect.
Conceding title to the stocks to be in Barndollar, still there was no wrongful conversion upon the part of any person, either personally or in a representative capacity. Even so,.there can be no recovery in such a case without demand first having been made.
In my view of the-law, there was no demand in this case. But if we concede a demand to have been made, then such demand was upon Jones and Grimes personally, and not as administrators.
The suit was instituted against them personally, a demand was upon them personally alleged, and in the answer to each petition in intervention is to be found the repeated denial that Jones and Grimes acted in their capacity as administrators, and also repeated allegations that they acted in their individual capacity.
A demand upon one as an individual is not a demand upon him as an administrator, and particularly when the party making the demand expressly declares the demand to be upon the individual and not the official.
For such reason the arbitrary date fixed in the judgment as the date of the demand is without basis, either in law or fact. There can be no recovery for conversion when the essential elements of conversion are wanting.
Remittitur
On Motion to Recall Remittitur and Correct Mandate. '
After the remittitur was issued it was made to appear that the mandate directing judgment against the administrators in their official capacity was not justified by the facts disclosed by the record. Thereupon, at the request of counsel representing all parties, the remittitur was recalled. It appears that Thomas, as administrator de bonis non, petitioned the trial court to he substituted in place of Grimes and Jones as defendants in their individual capacity, and as administrators of the estate. On this petition an order was entered substituting Thomas, in his representative capacity, in place of Grimes and Jones, as administrators, but denied as to them individually. It thus appears that subsequent to this order. Grimes and Jones were not before the trial court in their representative capacity, and hence, not here as such, and it was a mistake to direct a judgment against “the administrators in their official capacity,” when in fact there was but one, namely, Thomas. It is therefore ordered that the mandate of this court be corrected so it will direct that judgment he entered against all the intervenors, in accordance with the views expressed in the opinion, which includes the administrator, Thomas. Let remittitur issue accordingly.
Mandate corrected.
Mr. Justice Scott dissents.
Mr. Justice Teller not participating.
