Jones v. Sutton

19 Colo. 285 | Colo. | 1893

Chiee Justice Hayt

delivered the opinion of the court;.

The appeal as taken from the county to the district court was properly taken under the amendment of 1891. See Session Laws, 1891, pp. 108,109.

The main contention in this court, as in the county and district courts, has reference to the proper construction of the two written contracts of May 1,1882. These agreements were executed contemporaneously, and relate to the same subject-matter; they refer one to the other and are to be construed together.

The first of these agreements also refers to, and is based upon a prior agreement executed between Isaac Cooper and the bondholders of The Roaring Fork Improvement Company. This agreement will be found specifically set forth in the case of Jones, Administrator, v. Perot, decided at this term, ante, p. 141. An examination of this prior agreement discloses that both Cooper and Sutton were interested in the stock amf bonds of The Pearl Mining Company and of The Roaring Fork Improvement Company. In the carrying out of the enterprise undertaken by these companies, the expenditure of large sums of money was contemplated, and it was expected that handsome profits would be realized.

The agreement of May 1, 1882, between Cooper, Sutton and Bradley is plain and unambiguous, if the agreement between Cooper and the bondholders be borne in mind. From these and the evidence before us relating to the account claimed by Sutton of #16,750, it appears that this sum is made up of #4,750 theretofore paid to Cooper, and the sum of #12,000 paid at the time of the execution of this tripartite agreement. These amounts constituted a part of the consideration paid by Sutton for an equal interest with Cooper in the stock and bonds of The Roaring Fork Improvement Company then owned, or that might thereafter be acquired, by either of the parties. By the first of the agreements of May 1, 1882, in the order in which they appear in the statement preceding this opinion, Cooper assumes no personal liability for the repayment of this sum of $16,750, or any part thereof.

It is contended, however, that Cooper did obligate himself personally to repay this money to Sutton by the second agreement, of May 1, A. D. 1882. The argument in support of this contention is based upon the statement in this agreement-that said sum was advanced to Cooper by Sutton. It is claimed that the primary and usual meaning of the word advanced, when used in connection with the payment of money, means the payment of money to be refunded. This conclusion does not seem to rest upon any substantial basis. Moreover, as we have heretofore shown, the two contracts of May 1, 1882, are to be construed together, and when so construed it is clear that this sum was paid to Cooper as part of the consideration for an additional interest on the part of Sutton in certain stock and bonds. The only provision made for its repayment to be found in the first is that Cooper and Sutton were to deposit with Bradley, as trustee, a large amount of stock of The Pearl Mining Company, to be sold or hypothecated for the purpose of raising money, the proceeds to be used, first, to repay the amounts advanced by each, viz.: “The actual cash purchase price to said Isaac Cooper of all of the sixteen (16) properties of The Pearl Mining Company over and above the actual amount of cash subscribed by the bondholders of The Roaring Fork Improvement Company under the agreement between them and said Cooper before referred to, together with the actual cash outlay of said W. H. Sutton heretofore made in connection with the aforesaid companies.”

This is made more specific by the language of the second agreement to which Cooper and Sutton are the only parties, to wit: “That of the moneys so received by said W. Henry Sutton from D. H. Bradley, the sum of three thousand (3,000) dollars is to be paid to said Isaac Cooper the sum of ten thousand (10,000) dollars is to he applied to the payment of two notes of five thousand (5,000) dollars each, given by said Isaac Cooper to M. F. Simmons and endorsed by W. Henry Sutton, and sixteen thousand seven hundred and fifty (16,750) dollars is to be retained by said W. Henry Sutton as repayment to him of moneys advanced to said Isaac Cooper, and further that said W. Henry Sutton is to retain any additional amount that he may have advanced to-Isaac Cooper in connection with the matters of The Pearl Mining Company, that has not been otherwise repaid; and further that D. H. Bradley is to be paid ten per cent of the amounts received from the sale of The Pearl Mining Company’s stock at sixty cents per share or over.”

It is shown that the two notes of $5,000 each, given by Cooper to M. F. Simmons, were executed as part of the purchase price of the sixteen mining properties, conveyed first to Cooper and by Cooper to The Pearl Mining Company.

From the foregoing it will be seen that the only provision for the repayment of the amounts advanced by either was that such repayment should be made out of the proceeds of the stock held in trust by Bradley. Neither party assumed any personal liability to the other for the payment of any part of these sums; therefore the disallowance of the claim of Sutton upon the $16,750 account was proper.

In view of the foregoing analysis of the two written instruments of May 1,1882, it is apparent that the demand for an accounting made by the administrator of the Cooper estate in the court below should have been allowed. In no other way can the rights of the parties be intelligently adjusted. Independently of such an accounting the judgment of the court below in favor of Sutton upon one of the $5,000 notes in controversy cannot be sustained. The stock deposited with Bradley was to secure the payment of these two notes, and other advances made by the parties. Until the disposition of this stock has been accounted for no judgment should be allowed in favor of either of the parties against the other, based upon either of these $5,000 notes. • In adjusting the various claims between the parties, it will be necessary for the court to inquire into what disposition, if anyr, has been made of the second of those $5,000 notes. The evidence in support of this claim was withdrawn from the consideration of the county court prior to its decision, and in the district court the claim itself was withdrawn. We are not advised as to whether such note has been paid. If it should be shown that it has been paid by Cooper, then Sutton certainly is not entitled to recover anything upon the remaining note, for the reason that under the first agreement of May 1, 1882, it was provided that all expenses incurred and outlays made by either party in connection with the business were to be equally shared by Cooper and Sutton. Therefore, whatever payments have been made on either of these notes should be considered in any accounting that may be had.

The allowance of the claim upon the $1,000 note in the district court does not appear to be open to any of the objections not hereinbefore specified. From aught that appears by the pleadings or proof, this one thousand dollar note evidenced an independent transaction between the parties, or at least a transaction not covered by either of the agreements herein-before referred to. The loss of the note having been accounted for satisfactorily to the court below, it was proper to introduce secondary proof of the instrument. It is unnecessary to consider in detail the objections urged on the allowance of this note. They are all technical in character and do not go to the substantial merits of the controversy. Although the judgment of the court below must be reversed, the claim upon the $1,000 note should in all subsequent proceedings be taken as established in favor1 of Sutton, and credit given accordingly.

The judgment of the district court will be reversed with instructions by that court to order Sutton to file a complaint analogous to a bill in equity, wherein he shall set up, according to well settled rules of pleadings, all the various claims, matters and controversies between him and the estate of the deceased Cooper, as to which he may deem himself possessed of either legal or equitable rights. The administrator shall be likewise ordered to plead to such complaint, setting up whatsoever of defense, legal or equitable, he may deem available.

If there are other suits pending between the parties, involving matters growing out of these agreements, as alleged in defendant’s answer, then the district court should consolidate such suits with this, so far as the same can be consistently done in accordance with good practice, to the end that all controversies between the parties growing out of such agreements may, so far as possible, be settled in bne action.

Reversed.