Bolles v. O'Brien

• Decision Date: 06 July 1915
• Docket Number: 8032.
• Citation: 59 Colo. 261,151 P. 450
• Parties: BOLLES v. O'BRIEN.
• Court: Colorado Supreme Court

151 P. 450

59 Colo. 261

BOLLES v. O'BRIEN.

No. 8032.

Supreme Court of Colorado, En Banc.

July 6, 1915

Error to District Court, El Paso County; J. W. Sheafor, Judge.

Action by William O'Brien against Richard J. Bolles. Judgment for plaintiff, and defendant brings error. On rehearing. Former opinion withdrawn, judgment reversed, and cause remanded.

Bailey and Scott, JJ., dissenting.

James A. Orr, of Colorado Springs, and Vaile McAllister & Vaile, of Denver, for plaintiff in error.

John R Smith and Charles S. Thomas, both of Denver, and Henry C Hall and Samuel H. Kinsley, both of Colorado Springs, for defendant in error.

HILL J.

The defendant in error (hereafter designated as the plaintiff), who is an attorney and counselor at law, brought this suit against the plaintiff in error (hereafter called the defendant) to recover for services rendered the defendant between August 1, 1908, and March 20, 1910, and for certain disbursements. The verdict and judgment were for the plaintiff. The defendant brings the case here for review.

Numerous assignments of error are urged. We will only comment upon such as we think are entitled to serious consideration and which will require attention upon a new trial. It appears from the record that the plaintiff had for several years been attorney for the defendant in various enterprises in which the latter had been interested; that in July, 1908, the defendant purchased a considerable tract of land in Florida, which was followed by other and larger purchases in the latter part of that year; that O'Brien, among other things, acted as his attorney in the most, if not all, of these transactions (a question which is in dispute); that on January 19, 1909, they had a conversation concerning the compensation O'Brien was to receive for his services in these Florida land matters; that this question had not been settled prior thereto; that immediately after this conversation an agreement in writing was signed by the parties; that this agreement was, by its terms, one of copartnership, in which it was provided that Bolles should have a three-fourths interest and O'Brien a one-fourth interest in the business, the profits and losses to be shares accordingly, a provision for a salary to each of the parties for the future being also included. It further appears that in April, 1910, Bolles brought suit in Florida for the cancellation of this copartnership agreement; that O'Brien filed a cross-bill, in which he prayed for an accounting as partners under the agreement; that the trial court decreed a partnership and ordered an accounting upon O'Brien's cross-bill; that upon appeal the Supreme Court of Florida reversed this judgment, with directions to enter a decree annulling the contract, upon the ground that, when considered in the light of the law and the evidence, it did not create a partnership or trust in the lands or the profits; that these directions were without prejudice to O'Brien's rights to sue at law upon a quantum meruit for his services as attorney and for moneys paid out for the beneit of Bolles, etc. See Bolles v. O'Brien, 63 Fla. 342, 59 So. 133.

The court permitted the interpolation into this record of certain testimony of one Bensel given in the Florida suit by way of cross-examination of the defendant's witness Jennings, who had been one of the counsel for Bolles in the Florida suit, and who, prior thereto, claimed to have had business dealings with him in negotiating the sale of certain lands belonging to others. It is quite apparent that the principal object of his testimony throughout was to minimize all that O'Brien had done in the way of services for Mr. Bolles, and to fully set forth all that the witness had done in this respect, in order to show that he (Jennings) was the moving spirit in many matters for which he (O$Brien) was seeking compensation. In his direct testimony he had intimated that in October, 1908, Bolles knew nothing about the Southern States Land & Timber Company, or its lands. This was a company which Bensel represented. On cross-examination he was asked whether he was aware of the fact that in October, 1908, Bolles and O'Brien had gone to Bensel and negotiated with him about buying some lands, to which he answered, 'I don't think so.' He was then asked: 'You don't think you were aware of it, or you don't think that they did?' He answered: 'I don't think I was aware of it. I don't think they mentioned it to me at all. I don't think I had any information about it at all.' He was then asked: 'Well, if that was the fact, wouldn't it indicate that they were thinking of buying lands without dealing through you?' To which he answered: 'It is difficult enough, Mr. Smith, to try to recall things that come within my knowledge, without trying to pass on what other people are thinking about.' He was then asked: 'You didn't know anything about it then?' To which he answered: 'I did not.' He was then asked: 'You know about it now, don't you?' And he answered: 'Well, I have heard it mentioned.' He was then asked: 'Well, don't you know it?'

Upon objection being made to this question, as had been to the previous ones, counsel for O'Brien said: 'I propose to show, if the court please, by this witness, that this witness, as counsel for Mr. Bolles, examined and cross-examined Mr. George F. Bensel, who is mentioned as the agent of the Southern States Lands & Timber Company, and that he heard Mr. Bensel testify; that in October, 1908, Mr. Bolles and Mr. O' Brien came to his office, to the office of Mr. Bensel, the agent of the Southern States Land & Timber Company, and entered into negotiations about the purchase of land, which the witness states was negotiated for exclusively by himself.' The objection was again renewed and overruled; the witness proceeding as follows: 'My best recollection is, Mr. Smith, and I refer to the testimony--' Plaintiff's counsel interposed as follows: 'That isn't answering my question, Governor; you may go on, though.' The witness, continuing, said: 'Mr. Bensel so testified, and then in the cross-examination said that he showed these gentlemen the maps of three or four or five companies of their lands, aggregating up into 2,000,000 acres of land, but that neither Mr. Bolles nor Mr. O' Brien said a word to him about buying lands; but, if I am mistaken, the record is there, and Bensel's testimony is there, to show it.' He was then asked: 'You cross-examined Mr. Bensel yourself, didn't you?' To which, over objection, he answered: 'I did, sir.' He was then asked: 'Let me ask you if you don't recall this examination of Mr. Bensel--this was examination by Mr. L' Engle' (O'Brien's counsel in the Florida case).

Over objection counsel was then allowed to read to the witness from what appears to be agreed was the record in the Florida case, some nine or ten questions and answers of the witness Bensel in that case, wherein he had testified in substance that previous to December, 1908, O'Brien and Bolles were in his office in Florida 2 or 3 or maybe more times within 2 or 3 months before December, 1908, regarding the December contract and land transaction; that he may have met them together between 10 and 20 times; that he went to the office in Jacksonville which they occupied and saw them there; that previous to their taking an office he met them quite often in Jennings' office; that the purpose of the visits of Bolles and his attorney, O'Brien, were that Bolles was negotiating for the purchase of some land, and he dropped in for information and other data which he had from the office; that the tract of land that he was negotiating for was the tract of 180,000 acres in round numbers; that he did not think he ever furnished him with the list of those lands unless he gave him certain printed maps. To all of which objection was made and overruled, after which the witness answered that he remembered the substance of the questions propounded there and the occasion as being a part of his (Bensel's) testimony. He was then asked: 'Well, he never denied those things that he answered you, did he?' To which the witness replied: 'I think he did, as the record will show, if you progress; and it will also show that Mr. Bolles did not have an office during the year 1909 in the Dyal-Upchurch Building at all.' He was then asked: 'I will hand you this testimony. It is not very long. Won't you please point out where Mr. Bensel changed or modified his entire testimony in that regard at all?' Upon objection being overruled, the witness read about 25 further questions which he had propounded to the witness Bensel in the Florida case, and Bensel's answers thereto, all of which talks were concerning lands, and, per the witness' version, referred to transactions between him, Bensel, and Bolles, and O'Brien, after which the witness Jennings was asked: 'You have no question now, have you Governor, that Mr. Bolles and Mr. O' Brien were there discussing the matter of these lands with Mr. Bensel, in October?' After objection overruled, the witness answered: 'I don't understand from that examination that they made any inquiry touching any purchase of any lands.'

It is readily apparent that Mr. Bensel's testimony may have been considered by the jury for a twofold purpose, namely, as tending to impeach the witness Jennings, also as tending to show that he (O'Brien) had performed certain services for the defendant, Bolles, which Bolles claimed had been done by Jennings, as testified to by him. We think it was incompetent for either purpose. Mr. Jennings did not state that Mr. Bolles or Mr. O'Brien did not make the visits to Florida and to Bensel's office referred to, but, on the contrary, said: 'I don't think I was aware of it. I don't think they mentioned it to me at all. I don't...