10 Colo. App. 14 | Colo. Ct. App. | 1897
delivered the opinion of the court.
Since this case was originally decided a petition for rehearing was granted and the case has been reargued and submitted to further examination. While we remain of our original opinion that there is error in the case, the court has reached a different conclusion with respect to the affirmative defense on which the court divided when the case was first decided. This compels us to formulate a new opinion and state our present conclusions. It would be manifestly impossible to write an opinion which would be satisfactory to counsel or to the profession and leave the first to stand since it would require very considerable comparison and analysis to contrast them and determine exactly what the court decides.
The action was brought on a contract to recover compensation for services alleged to have been rendered by O. H. Henry to The Colorado Land & Water Company in aiding the sale of tracts of land which that company bought from the state. Prior to 1890 the state was the owner of a large body of land in the county of Otero, and in 1889 the legislature passed an act providing generally for the sale and irrigation of state lands. T. C. Henry conceived the scheme of purchasing a large body of these lands in that county, constructing a ditch to irrigate them, and selling them as thus improved. On the 21, of January, 1890, he made an application to the state board of land commissioners to purchase the alternate half sections of this tract, and entered into a contract with the board binding the company to bid the minimum price which the board might fix, which was
“O. H. Henry, Esq.,
“ State Board of Laud Commissioners, City.
“ Dear Sir: I hereby agree, for and in behalf of the Colorado Land and Water Company, to pay you commissions on the sales of land and water which you may make or cause to be made under the line of our canal within the territory em
“ The said commissions, which it is understood and agreed shall be and not exceed the sum of $5,000, are to be paid in cash when the certificates to said land shall be issued to said canal company or its assigns; the intent being that you shall be paid that amount in consideration of such sales as you may effect and have effected of such lands, contingent only upon said land and water company being successful bidders and purchasers of said lands.
“ Respectfully,
“T. C. Henry.”
This was signed by T. C. Henry though purporting to be the contract of the corporation and it was alleged to have been made on its behalf, and the proper allegations supported by competent proof were inserted and offered to show Henry’s right to execute the contract for the corporation and a subsequent ratification by the land company whereby it became its contract. The plaintiff then alleged performance and the procurement of purchasers whose contracts on the basis of the original agreement as to commissions amounted to more than enough to entitle the plaintiff to recover the sum specified in the letter of February 8. Payment of $1,000 was made on the 7, of June, 1890. The balance was unpaid'. During the trial it appeared that the ditch was not completed at the time agreed on and its construction was not finished until long after the date specified in the offer to purchase and possibly agreed on between the state and the company. This is unimportant save as explanatory of the delays and of some evidence given with regard to it. The ditch not being finished and T. C. Henry failing to obtain the money by the sale of lands and water rights, it was necessary that the whole enterprise should be turned over to W. C. Bradbury, the contractor who was building the ditch, who was elected president of the company, took possession of all of
As we view it T. C. and O. H. Henry gave evidence concerning the persons whom the latter had interested in the property and who according to their testimony had become induced through his efforts to become purchasers. Whenever in the discussion we reach the domain of disputed matters we shall be exceedingly cautious that undue advantage may come to neither party on the subsequent trial by
As we view it the court committed one grave error which compels the reversal of the case. This respects the striking out of a part of the testimony of Mr. Brockway who was called to testify on behalf of the plaintiff. The significance and importance of this testimony will be the more clearly seen when it is considered that the other parties who gave evidence in the case were the two parties between whom the contract was originally made and who were attempting to support it, both as respects its original integrity and as a contract of the land and water company and were therefore not indifferent nor without interest in the result. On the other hand, Brockway was at that time one of the directors of the water company, and likewise an attorney for Mr. T. C. Henry. So far as this transaction was concerned he was an indifferent and wholly disinterested witness. In the course of his evidence, he testified that he was one of the directors of the company, daily concerned in the transaction of its business and fully cognizant of the affairs of the company and of its growth and history. He likewise gave evidence to the point that most of the directors of the company had full knowledge of the existence of this contract, of what was being done under it, and were greatly pleased at Mr. O. H. Henry’s successful efforts in that direction and approved of what Mr. T. C. Henry had done. After he had given this evidence in the direct examination, he was then re-examined and then recross-examined. In the course of the latter examination, he stated that whatever information he had respecting this matter he got from Mr. T. G. Henry or possibly also from his brother. Thereupon, a motion was made to strike out the testimony wherein he stated that he knew
It is impossible for us to concede that the striking out of this testimony may not have had great influence with the jury. There was an entire absence of an exact limitation on what was stricken out and both the motion and ruling were so broad and so general as to apparently eliminate from the consideration of the jury all of Brockway’s testimony which covered his knowledge respecting O. H. Henry’s employment to sell the land. This was the point of the controversy, the thing to be established, the basis of the plaintiff’s case, and the object of attack. To strike out the testimony of a disinterested witness who was able to state fully his knowledge about it, and the knowledge of the other directors concerning it, and the source of his information, which turned
There is one other matter to which our attention must be directed before we dispose of the case. That portion of the original opinion, in which the present writer did not concur, which adjudged the testimony offered in support of the affirmative defense, to wit, the illegality of the consideration insufficient to support it or to warrant the submission of the matter to the jury still remains to be disposed of. It is a matter which must be very cautiously discussed. This is on the hypothesis that the reversal on the other grounds will still leave it for disposition on the new trial. We are not inclined to withdraw the consideration of that issue from the jury. W e may very safely say the company offered little testimony to support it. In this respect the case rested much on the inferences which might be drawn from what was said by T. C. Henry and O. H. Henry in the course of their cross-examination. It is true Mr. Bradbury gave direct testimony respecting the statements of both of them on the subject of the real consideration but whether evidence of such declarations hi the face of positive testimony to the contrary would be sufficient to justify a verdict we do not propose to decide nor in this opinion hold that the issue may not be again submitted.
We think the court erred in giving the ninth instruction because although it may contain the germ of a correct legal principle, yet, without some limitation and the expression of the true doctrine in such matters, this abstract statement must have been prejudicial to the plaintiff. When a court undertakes to say that in determining what facts are true, the jury may consider not only all the evidence and all the circumstances of the transaction under investigation, but may also find any fact proven which they may think rightfully and reasonably inferable from the evidence, it puts a
This somewhat lengthy résumé of the case indicates the mature convictions of this court respecting the present record and indicates the lines along which, according to this opinion, the case should be subsequently tried. What has been said will enable the trial court to avoid the difficulties into which it fell and eliminate the errors which have compelled us to reverse the case. The judgment of reversal will be adhered to, though with such modifications of opinion on specific propositions as are apparent from this decision.
Reversed.
Wilson, J., not sitting.