13 Colo. App. 523 | Colo. Ct. App. | 1899
The appellants, Riner & Schnitger, filed in the probate court of Arapahoe county, the following statement of a claim against the estate of John H. Husted, deceased:
“ The estate of John H. Husted to
Charles W. Riner and William R. Schnitger, Dr. “1896.
“Jan 15. To damages suffered by the said Charles W. Riner and William R. Schnitger on account of failure of the administratrix of the estate of John H. Husted, deceased, to accept from the said Charles W. Riner and William R. Schnitger $28,000 worth of bonds of Casper, State of Wyoming, and known as the Casper Water Works bonds, in accordance with the terms of a contract entered into by and between the said Charles W. Riner and William R. Schnitger on the one part, and the said John H. Husted on the other part — said John H. Husted having agreed to purchase said bonds at the sum of 90 cents on the dollar, and the said Charles W. Riner and William R. Schnitger being compelled to sell said bonds on account of the failure of the said administratrix to accept them at the said 90 cents on the dollar, at the sum of 88 cents on the dollar $1,610.00
To expenses incurred by reason of failure of said administratrix, as follows:
To expenses in Denver, six days, in endeavoring to sell said bonds 30.00
To railroad fare to Denver and return 9.30
To services in Denver in selling said bonds 100.00
$1,749.30
“Indorsed: Filed.”
At the trial in the district court, the claimants introduced a number of letters to them from Mr. Husted, only one of which is of any importance. That one reads as follows :
“Denveb, Sept. 2,1895.
“ Messbs. Rineb & Schnitgeb,
“Cheyenne, Wyo.
“ Gentlemen: I hereby agree to purchase the issue of Casper Water Works bonds of Casper, Wyo., amounting to twenty-three thousand ($28,000) dollars subject to their legality, approved by some reputable lawyer on municipal matters, at ninety (90) cents on the dollar.
“ Yours very truly,
“John H. Husted.”
EYom other evidence it appears that Daniel E. Parks was the lawyer whose judgment was wanted, and that he rendered his opinion in writing, affirming the validity of the bonds, on February 10, 1896. A witness, George W. Wright, stated that Mr. Parks reached the conclusion expressed in his opinion, before the death of Mr. Husted, and that the latter was informed of it. Mr. Riner, one of the claimants, testified that in the latter part of December, 1895, he brought a portion of the bonds to Denver, but learned that Mr. Husted was dead; and that afterwards, early in February, 1896, he brought the same bonds, and some additional ones, to Denver, to offer them to the administratrix, Mrs. Husted, but she refused to receive them, or any part of them. He stated that, on May 9, 1896, after some unsuccessful efforts to dispose of the bonds to other parties, he returned them to Mr. McGarney, the person from whom he received them, at eighty-three cents on the dollar, and that this was the best price he was able to obtain for them.
But if we should assume that the tender to the administratrix was a sufficient acceptance, the claim did not belong to the class of demands which might be exhibited against the estate in the probate court. It never was a claim against the decedent. No liability was ever incurred by him on account of the bonds. He had never refused to take them, and had never been notified that he was expected to take them.
The appellants complain of the admission and rejection of evidence, and the giving and refusal of instructions. We shall not dwell long upon the objections urged. The difficulty in the case is fundamental. Nothing which the appellants sought to prove could have converted the unaccepted offer of Husted into a contract, and nothing which was admitted for the estate made the want of a cause of action any more evident than the appellants themselves made it. Nor was the question of the jurisdiction of the probate court in the least affected by the rulings. Respecting the instructions, it is enough to say that the case should not have been submitted to the jury at all. There was nothing for them to pass upon, and it is immaterial what the instructions were. The court may have committed technical error in the course of the trial, but the error could not have injured the appellants, for they had no case on account of which they could suffer injury.
Let the judgment be affirmed.
Affirmed.