3 Colo. App. 49 | Colo. Ct. App. | 1893
delivered the opinion of the court.
In 1886, the appellant, Markell, and W. J. H. Miller were joint owners of the “ La Salle ” claim. They worked it together until early in January, 1887, when Markell, who apparently had been putting up all the expenses of operating the property, telegraphed Miller to stop work on his account. The order proceeded from a misunderstanding between the tenants in common which need not be stated. The order was disregarded in so far as it concerned the progress of the work, which Miller continued on his own account until early in July. It is unimportant to state the reasons which actuated Miller in this proceeding; the fact alone is the important element in the litigation. During the time that Miller was working the property, he incurred considerable debts which at the last date remained unsettled. Markell was a nonresident, and when he arrived in Aspen in July .lie entered into negotiations with Miller looking to the adjustment of their controversies. By reason of some antecedent transactions between these parties, Markell had become indebted to Miller to the extent of about $1,600, and Miller had brought suit to enforce his supposed rights in the property, and to recover what he claimed was due him. This is an important fact to remember when the question of ratification comes to be considered. While Miller was prosecuting his operations on the property j he mined and shipped considerable ore which he sold to the appellees, J. F. Matthews & Co. According to the quite common usage among people who are working mines which produce, but do not yield enough to pay current expenses, he obtained from Matthews & Company sundry advances upon ores to be mined .and shipped. The advances were made under the agreement that they should be repaid by ore to be subsequently mined,, if
During the progress of the trial it was sought to prove the making of the advance which was the real cause of action by the production of a note to Matthews & Company, executed in September following the agreement, and running as the individual promise of Miller to Matthews, Webb & Company. It was for a certain sum at 2 per cent interest signed by W. J. H. Miller, Manager, and by W. J. H. Miller. It was strenuously objected that this note was not competent evidence against Markell, and in no manner tended to establish his. liability for the claim sued on. The objection was well taken and the note should have been excluded. There is no
The court entered judgment for an erroneous sum. There was some evidence offered which tended to prove that at the time Miller got the advances he agreed to pay 2 per cent per month interest for the money. Aside from the note, there was no proof of- any agreement that would in the absence of express authority and ratification as to that part of the contract bind Markell to pay this interest. There was neither authority nor ratification. In this respect the judgment is erroneous. This error does not require us to send the case back for the entry of a proper judgment. It can be entered here and the rights of the parties properly protected and conserved.
The judgment is modified and affirmed.
Affirmed.