Newton v. Joslin

• Decision Date: 24 May 1887
• Citation: 30 F. 891
• Parties: NEWTON and others v. JOSLIN and others.
• Court: U.S. District Court — District of Colorado

30 F. 891

NEWTON and others v. JOSLIN and others.

United States Circuit Court, D. Colorado.

May 24, 1887

T. A Green and H. B. Johnson, for complainants.

T. D W. Yonley and J. N. Stevens, for defendants.

BREWER J., (HALLETT, J., concurring.)

The facts in this case are as follows: In the fall of 1883, Mrs Newton, one of the complainants, was the owner of a ranch near the city of Denver, which was subject to two liens of $6,000. Negotiations were had between her, her husband acting as her agent, and one E. F. Lamb, which resulted in an agreement for the conveyance of this ranch at an agreed price of $15,000; purchaser to assume the payment of the liens of $6,000, and to pay her the balance in dry goods. In pursuance of this agreement, a deed was made by her and her husband to Mrs. Vira Lamb, the wife of E. F. Lamb. The dry goods, which were packed in boxes stored in a warehouse in Denver, were delivered to her, and by her disposed of at private sale and by auction. Within 14 days after this conveyance, Mrs. Lamb and her husband conveyed the land to J. Jay Joslin, who thereafter conveyed it to the Arapahoe Land & Cattle Company. As a matter of fact, Joslin was the owner of these dry goods and Lamb in the transactions was acting simply as his agent. Mrs. Newton, on examination, found the goods to be far from such as she claims they were represented to be. Nevertheless she sold and disposed of them as heretofore stated. She claims that she was ignorant of the fact that Joslin was principal, but supposed all the time that the goods belonged to Lamb, and that, after she had discovered the inferior quality of the goods, she instituted no suit, because she found that Lamb was insolvent; but, after some months, ascertaining that Joslin was the real party in interest, she commenced an action against him in the district court of Arapahoe county for a breach in warranty of these goods. Answer was filed, and the cause went to trial, which resulted in a verdict in her favor. The judge of that court set aside the verdict. Thereupon she dismissed that action, and commenced a similar action in the superior court of Denver, in which she claimed that there was a fraudulent warranty, and sought to recover damages therefor from Joslin. The cause was tried first by a jury, but the jury hung, and were discharged. At the succeeding term a jury was waived by consent of parties, and the trial was had before the judge of that court without a jury, and judgment was entered in that trial in favor of the defendant; and now the complainants, Mr. and Mrs. Newton, come into this court, and file a bill making Mr. and Mrs. Lamb, J. Jay Joslin, and the Land and Cattle Company defendants, in which bill is narrated all the frauds which they claim were perpetrated on them by Joslin through his agent, Lamb, and the various transfers of title from Mrs. Lamb to Joslin, and from Joslin to the company, and the circumstances of the trial above referred to; and then it alleges that that judgment should be regarded as null and void, because obtained by perjury, and the corruption and bribery of the judge.

As might be expected, a very bitter and acrimonious controversy has followed these charges. The matter which, of course, first arrests attention, is that of the alleged corruption and bribery of the judge of the superior court; for, if these grave charges were true, not only would the judge himself receive the just condemnation of every honest man, but in every court the judgment which he had sought by his wrong to lift up as a barrier to truth and justice would be wholly disregarded. Such charges are grave ones, and ought not to be lightly made. Upon what evidence are they based? First, it is claimed by counsel for the complainants that the judgment itself is such an outrage that no honest man could have pronounced it; and, second, he says that the surrounding circumstances are such as indicate corruption.

Noticing the second matter first, I premise by saying that I have no reason to doubt the good faith of Mr. Green, the counsel for complainants, or that he is acting otherwise than from a sense of duty. He feels, doubtless, that his client has been grossly wronged, and, failing of the redress which he believes she is entitled to, he fancies that the judge who decided against him is party to the wrong, and construes the most innocent and ordinary acts into evidence of such participation. While conceding good faith to Mr. Green, I am compelled to add that the matters to which reference is made as evidences of wrong-doing are so frivolous and trifling that I am amazed to hear them mentioned. Let me mention them. On the first trial, while the jury were out, it appears that Judge RODGERS called a moment at the office of the counsel for the defendant. As explained, it appears that, when the court took a recess at 12 o'clock, the jury having been out all night, Judge RODGERS said that he would call at the offices of the respective counsel, and notify them to be present at 2 o'clock, as he thought he should then discharge the jury. Just after he left the court-room, the jury sent him a communication, declaring their inability to agree. The bailiff followed him, overlook him at the office of Mr. Marsh, defendant's counsel, and gave him this communication. On reading it, he informed Mr. Marsh, requesting him to attend at 1 o'clock, and prepared a note, which he sent to Mr. Green by the bailiff, asking him also to be present at 1 o'clock.

Somehow or other, the note failed to reach Mr. Green; but, as Mr Green's partner was present at 1 o'clock, the...