Adams v. Schiffer

• Citation: 17 P. 21,11 Colo. 15
• Parties: ADAMS v. SCHIFFER et al.
• Decision Date: 27 January 1888
• Court: Colorado Supreme Court

17 P. 21

11 Colo. 15

ADAMS v. SCHIFFER et al.

Supreme Court of Colorado

January 27, 1888

Error to district court, Rio Grande county.

Adams the plaintiff in error, filed his bill of complaint in the court below against Schiffer, Forsch, and Stern, praying for an account, and a reconveyance to him of the Aztec lode and the Aztec mill-site, and, in case he should not be entitled to this relief, that the defendants be decreed to pay him certain sums of money. The cause was tried to the court, on the bill, answer, and evidence, and the bill dismissed. From this decree Adams appeals to the supreme court. It appears from the evidence that the plaintiff in error, Adams, on the 24th day of January, 1881, entered into a contract to sell to the defendant Schiffer an undivided one-half interest in certain mining and milling property, viz., the Summit lode and the Summit mill-site, situate in Summit mining district in Rio Grande county, with the engine, stamp-mill, and machinery thereon. The consideration was $3,500,-$1,500 cash in hand, the remaining $2,000 to be paid when, in the language of the contract, 'said Adams shall execute and deliver to said Schiffer good and sufficient deed of conveyance, passing to said Schiffer a good and sufficient title to the above-described property.' It was further agreed 'that at any time when, by mutual consent, the whole of said property shall have been sold for the sum of $40,000, or the interest of said Schiffer in said property shall have been sold for the sum of $20,000, the said Schiffer will immediately pay to the said Adams the sum of $6,000.' Schiffer further agreed 'to furnish the sum of $5,000 as working capital for the working and developing of the aforesaid property; said amount to be furnished as needed for the working and developing of said property; * * * and it is agreed that the said $5,000 shall be repaid to said Schiffer out of any proceeds arising in any way from said property.' It was further agreed 'that, should it be advisable for said Adams to relocate the lode or mining claim and mill-site heretofore described and known as the 'Summit Lode,' and 'Summit Mill-Site,' and to change the name of said lode from its present name 'Summit Lode,' to that of 'Aztec Lode,' and to change the name of the said mill-site from its present name, 'Summit Mill-Site,' to that of the 'Aztec Mill-Site,' then all of the aforementioned agreements by each of the parties hereto in relation to the said Summit lode and Summit mill-site shall apply with equal and full force and effect to the Aztec lode and Aztec mill-site, when the same shall have been located.' In selling and purchasing, the respective parties had in view placing the property on the New York market, and selling it at an advance. The complainant, Adams, addressed himself at once to the relocation and entry of the lode and mill-site under the name of the 'Aztec Lode' and 'Aztec Mill-Site.' The entry under that name was made by him on or about the 15th of the following June. In the mean time both Adams and Schiffer went to New York city, and, in the month of March following the sale, Adams sold to one Ferdinand Forsch, a brother-in-law of Schiffer, a one-eighth interest in his remaining interest in the mining and milling property for the sum of $2,500; $250 was paid down, and the remaining $2,250 was to be paid, in the language of the agreement, 'on or before the 1st day of June, 1881, or as soon thereafter as a perfect title deed can be given said party of the first part; said party of the first part binds himself, or his heirs, assigns, or administrators to give said party of the second part a good warranty deed, as soon as a duplicate receipt for patent is issued from the United States land-office at Del Norte, for the within described mine and mill-site.' Both parties returned from New York to Del Norte; and, on the 15th of June, Adams having theretofore entered the property under the name of the 'Aztec Lode and Mill-Site,' conveyed to Schiffer by deed of quitclaim the one-half interest in pursuance of his agreement of the 24th of January, at which time Schiffer paid to Adams the remainder of the purchase money, $2,000. Adams also at the same time tendered to Schiffer, as the representative of Forsch, a deed for the one-eighth interest theretofore sold to Forsch in March. At this point the first difference arose. When Adams tendered the Forsch deed to Schiffer the latter refused to receive it, and to pay Adams on behalf of Forsch the remainder of the purchase money $2,250. He claimed that Adams had made certain false and fraudulent representations respecting the amount of ore on the dump at the time Forsch purchased. Adams denied making any such representations. Schiffer offered to receive the deed for Forsch, and to pay $1,750, saying that this was the best he would do. Adams finally accepted the proposition took the money, and delivered the deed. In respect to this, as well as the other contentions in this case, the parties are practically the only witnesses. Of this settlement on the 15th of June the plaintiff, Adams, testifies: 'Mr. Schiffer had gone up to the mine, and came down and said to me that I had made representations of the mine to him and his brother-in-law. I said I had not done any such thing. He said, 'You made representations, but the condition is not as you represented it to be; you said there was at least 1,500 pounds to a ton somewhere there, but it is not there.' I said, 'What has become of it?' He said he did not know; it was not there. I asked him if he thought I was responsible for that. 'I cannot help it,' he says;'it is not there, and I do not propose to pay you the other $2,250.' I said 'I could not stand that. I am ready, whenever I can get my money, to make this deed.' He said, 'I will pay you $1,750, and no more, and I think I will probably buy this back myself from Mr. Forsch.' Understanding that I had done as I had agreed to do, I trusted to getting the other $500 from Mr. Forsch, and gave him the deed. This conversation occurred in Mr. Schiffer's store, in the main building. * * * I took the ore that I carried to New York as specimens out of the same place, and Mr. Schiffer and I both went to see Bullback in New York. There was fifty-eight pounds of dry ore. Mr. Bullback's certificate was 1,467 dollars, and, I think, some cents. * * * Mr. John Shaw told me there was 1,500 pounds on the dump. I made the statement through him. I left the mine on the 16th day of January, previous, I think. This ore was taken out afterwards. I informed Mr. Schiffer of the ore taken out, as a fact stated by Mr. Shaw. The ore was sampled before the sale to Mr. Forsch. * * * I wanted the money, and he wouldn't pay more, and I took it rather than lose the sale.'

The defendant Schiffer testifies that 'Mr. Adams told him (Forsch) it was a good piece of property in his opinion; told him there was some money taken out last year; and, judging from the ores which he had sent to me, it was a valuable piece of property. I received 58 pounds of ore which I assayed at Bullback's, and it ran one thousand four hundred dollars; that is, the ore that he testified about, sent in the spring. Mr. Adams told Mr. Forsch there was several tons of good ore on the dump. Mr. Forsch said, 'If that is the case, what will you take for an interest,--for one-sixteenth.' Mr. Adams wanted five thousand dollars; Forsch would not give it; * * * but finally an agreement was drawn up that he was to pay Adams $250 down and $2,250 when Mr. Adams gave him the deed; that was the sum of the contract. We both considered that there was not much risk, as there were several tons of good ore on the dump. When we went up to the mine I do not believe we found fifty pounds of ore; * * * there was a vein there, but not very valuable ore; that was at the Colconda; but he represented that there was several tons of very rich ore. Mr. Adams came to Del Norte a few days later,--about the 14th or 15th of June. We had the receiver's receipt of the Aztec lode. The deeds were brought over the next day, and we went to Jim Ross' office to acknowledge them, and we had my deed acknowledged. I told Mr. Adams that I would not take the Forsch deed; that, under the circumstances, I could not accept it, as Mr. Forsch had requested me to attend to his business for him. I said, at the recorder's office, 'We will consider that you own one-half and I own one-half, and that the deed to Forsch was not accepted by me.' * * * I told Adams I would not accept the Forsch deed, and would rather let the $250 go than take the property, as it is entirely different from what you represented it to be in New York. Mr. Adams insisted upon it, but I would not do it. I told him I would telegraph to Mr. Forsch about it, and then I could tell him what I could do. I telegraphed that I thought two thousand dollars should be paid, and no more; and if Mr. Adams would be satisfied with that, I would wire him. Mr. Adams said to wire him, and see what he says. I was accepted. Mr. Adams acknowledged the deed, and I paid him one thousand seven hundred and fifty dollars. He made the draft on Mr. Forsch, and I cashed it. Mr. Adams was perfectly satisfied. I acted for Mr. Forsch because he was my brother-in-law, and he told me to act for him. The receipt given me is the one read in evidence.' With respect to this transaction, Adams claims that he is entitled to a decree for $500, the remainder of the purchase money as agreed upon.

On the 18th day of October following, Adams entered into an agreement with Schiffer to convey to him by good and sufficient deed his remaining interest in the said Aztec lode and mill-site, for the sum of $25,000, to be deposited to the credit of Adams in the Rio Grande County Bank on or before the...