19 Colo. App. 416 | Colo. Ct. App. | 1904
According to the evidence, in November, 1895, the appellee employed the appellant to negotiate, in appellee’s behalf, an exchange of certain mining stocks belonging to the appellant, for the interest of one Fletcher in the Blackbird, Bonanza, Kiowa and Carbonate Placer mining claims, in Cripple Creek mining district, Colorado. The appellant accordingly proceeded to execute the commission with which he was intrusted, and succeeded in effecting the exchange, taking the titles to the several claims in his own name. After having so acquired title, he reported what he had done to the appellee. At the
The appellant brought this suit to recover the share of the money to which he was, as he alleged, entitled by virtue of his agreement with the appellee. When the plaintiff had concluded his evidence, on motion of the defendant, judgment of nonsuit was rendered against him.
The foregoing statement of facts is derived from the evidence introduced by the plaintiff, which was the only evidence introduced, and which the motion for a nonsuit admitted to be true. It was shown that in the transaction between the defendant and the mining company the interests conveyed were not separately valued, but that they were taken by the com
We infer, however, that in the opinion of counsel the plaintiff could not have made the proof he 'attempted. They say that he not only did not show, but could not show, what he was entitled to receive; and, from his supposed inabilty to make the necessary proof, they argue that there could be no recovery in' his favor. We have never so understood the law.' The plaintiff had no part in the transaction between the defendant and the mining company; and if, in the sale to the company, the defendant so combined his individual property with the cláims respecting which he owed a duty to the plaintiff, as to put it beyond the power of the latter to show what proportion of the whole consideration should be credited to those claims, then, as between the two, on the principle applicable in the case of a willful confusion of goods, the share to which the agreement entitled the plaintiff would extend to the entire amount received, and one-half of it would belong to him. The law is well settled that where one so intermixes his own
In Graham v. Plate, the defendant manufactured pistols bearing the trade-mark of the plaintiff’s intestate, without any authority to use the trademark, and it was held that because it was impossible to determine how much of the profits from the sale of the articles resulted from their intrinsic value, and how much from the credit given them by the trademark, the owner of the trade-mark should have the whole. In Hawkins v. Spokane Hydraulic Mining Company, the corporation worked a mining claim, in which it had a minority interest, against the protest of the representative of the majority interest, and, without the consent of the other party, mingled with the gold taken from that claim, gold extracted from its own claim, the amount of which was undeterminable ; and it was held that it was entitled to nothing on account of the gold taken from its own claim.
Another point made is that the agreement between the plaintiff and the defendant was within the statute of frauds, and, therefore, not enforcible. Counsel seem to suppose that the intention of that agreement (which was not. in writing) was to vest in the plaintiff an interest in real estate. But it had no such purpose. The plaintiff, at the request of the defendant, procured for the latter the title to certain real estate, taking such title at first in his own name,- and afterwards conveying it to the defendant. Having performed this service for the defendant, the agreement was that he should receive as his compensation, not an interest in the ground, but one-
The judgment is reversed, Reversed.'