7 P.2d 956 | Colo. | 1932
JOHN McNeill sued his former attorney, Con K. O'Byrne, to procure a decree of court establishing that the defendant O'Byrne is holding certain mining property under a certificate of sale from the sheriff, in trust for the benefit of plaintiff and defendant. We refer to McNeill as plaintiff, to O'Byrne as defendant, and omit unnecessary references to the sheriff of Gilpin county, impleaded with O'Byrne. Upon trial to the court the findings in the large were for plaintiff; the court decreed that defendant is a trustee for the plaintiff as to a fractional interest in the certificate of purchase held by defendant; that defendant is the owner of a smaller fractional interest in such certificate; that defendant be required to assign the difference to plaintiff, and that if he fail to assign, the sheriff is commanded to issue a deed to the parties in accordance with their respective interests. Defendant brings error and plaintiff assigns cross-error.
The following are the contentions of plaintiff: He had a claim for a lien against a group of mining claims called "Fifty Gold Mines," situate in Gilpin county, Colorado (see Kingdom of Gilpin Mines, Inc. v. McNeill,
Counsel for defendant correctly said in a comprehensive brief which they filed, that the questions are largely of fact. Their assignment of error, as reduced and argued in their briefs, may be further condensed into two propositions: (1) The contract alleged to have been made between plaintiff and defendant is for an interest in lands, and is therefore void under the statute of frauds; (2) insufficiency of the evidence.
[1, 2] 1. The confidential relations between the parties were sufficient to create a constructive trust. Vosburgv. Knight,
McPherrin v. Fair,
[3] 2. Evidence. Plaintiff proved his case in all essential particulars. Numerous witnesses testified; correspondence, and other evidence of a documentary character, was produced. The evidence was conflicting in some respects, an incident common to litigation, but it was more than ample to sustain the judgment. It is manifest from the record that the learned trial court followed the evidence closely, and it is difficult to see how any other conclusion could have been reached. To extend the evidence at length in this opinion would be only a repetition in longer form of plaintiff's contentions as stated above, supplemented by futile opposing testimony. It would serve no useful purpose to encumber the reports with it.
[4] 3. Plaintiff's assignment of cross-error may be explained as follows: The defendant attorney agreed to assist, and did assist plaintiff in the latter's suit for a lien against the mining property. The parties originally agreed that defendant was to receive a sum equal to one-third "of whatever may be collected for the party of the first part [plaintiff] by suit or otherwise." Plaintiff *230 contends that since no money was collected, defendant cannot claim one-third of the real estate realized by plaintiff. We are unable to agree with plaintiff. If there was any such agreement, it is apparent that the parties by their acts modified the arrangement to meet the exigencies of an acute and uncertain situation. They pooled their interests, and took real estate because they could not get cash. It was that or nothing, and defendant did not forfeit his fees, or lose his share in the recovery, whatever it was.
The zeal of counsel for defendant and their faithfulness to him has led them to furnish exhaustive briefs upon his behalf, but they are not sufficient to overcome the evidence. The case has been ably presented, but the court decreed to the parties that to which they were lawfully entitled and we find no error.
Judgment affirmed.
MR. JUSTICE CAMPBELL, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER concur.