3 Colo. App. 188 | Colo. Ct. App. | 1893
delivered the opinion of the court.
If the evidence produced on the trial were conceded to be admissible it would not support the judgment entered. The
On very plain and well settled principles this judgment must be adjudged erroneous. In view of another trial the questions raised and argued by counsel will be determined, though a decision of one proposition might suffice to reverse the ease.
The defendants ought to have been permitted to change the instrument attached to the stipulation, so that the contract set out should, in all of its particulars, recitals and indorsements, conform precisely with the original on which alone the case ought to have been heard and tried. It is quite possible that a very narrow, strict and technical construction of the stipulation might suggest that the purpose of counsel was to permit only the addition of what might appear on the back of the original contract. Such is not a proper or an accurate interpretation of the language of the stipulation. The concluding phraseology provides that all indorsements, writings, figures, etc., thereon shall be copied on the back of the exhibit. These terms do not exclude the right to place on the copy the indorsements on the original, even though they might be on the face of the instrument;
It is doubtful whether the contract thus amended, more completely than the other facts contained in the stipulation, demonstrates the nonexistence of a cause of action as against these defendants. The recited facts show that the several parties to this action entered into an executory agreement for the sale and conveyance of certain specified property, upon a definite consideration, payable at a named date, prior to the transfer of the title by the deed of the grantor, who was one of the contracting parties. There are but two things to be done; — the payment of the consideration, and the execution and delivery of the deed evidencing the title. The proof was that on the 15th day of February, 1890, the deed was delivered to the defendants who were put in possession. According to well settled principies the delivery and acceptance of this conveyance annulled and abrogated the prior executory agreement, which may be no longer resorted to for the purpose of ascertaining the terms on which the land was sold, unless it is shown by otherwise competent testimony that
These considerations serve to demonstrate that the judgment cannot be supported upon the case made. The agreed statement of facts is insufficient to show a cause of action against these defendants, and for the reasons given the judgment must be reversed and remanded.
Reversed.