Brown v. Lapham

• Citation: 44 P. 504,22 Colo. 264
• Parties: BROWN v. LAPHAM et ux.
• Decision Date: 02 March 1896
• Court: Colorado Supreme Court

44 P. 504

22 Colo. 264

BROWN v. LAPHAM et ux.

Supreme Court of Colorado

March 2, 1896

Appeal from district court, Lake county.

Action by S. P. Brown against Joseph Lapham and Lucy Ellen Lapham. Judgment of nonsuit, from which plaintiff appeals. Affirmed.

This action was commenced in the district court by appellant, S P. Brown, for the specific performance of an alleged contract made with Joseph Lapham, one of the appellees. Plaintiff, in his complaint, alleges that Joseph, the defendant, at all times mentioned was, and still is, the owner of a one-fourth interest in certain mining claims, which are particularly described; that upon October 2, 1891, the defendant Joseph agreed in writing to sell and transfer to plaintiff the one-fourth interest in all of these properties for a consideration of $2,000, one-half the amount to be paid in cash, and the balance in 12 months; this balance to be secured by either a land contract or deed of trust upon the property conveyed. Plaintiff alleges acceptance on his part of this offer, and his possession and working of the property, and that he has since developed a valuable body of ore therein. He alleges his willingness to comply with all the terms of his contract with Joseph, and that he has performed every act requisite or in his power required by said contract. Notwithstanding his willingness to perform, he alleges that on October 26, 1891, Joseph refused to sign any conveyance whatever of said interest, and refused to accept the cash payment provided by said contract, and refused to accept security for the balance, and that he still refuses to comply with his agreement. It is further alleged that Lucy the wife of the defendant Joseph, resides with him at Chicago, Ill., and that she had full knowledge of the dealings and contract of her husband with plaintiff, as hereinbefore set forth. It is averred that Joseph, for the purpose of defeating any action which plaintiff might bring to compel a specific performance of the contract or for damages for its breach, on or about October 6, 1891 transferred to his wife, Lucy, his interest in the property and that she had at the time full knowledge of the fraudulent intent and object of her husband in making the transfer. Separate general demurrers were filed by the defendants, and overruled. Afterwards each defendant filed a separate answer, and in these answers each allegation of the complaint is specifically denied. In the separate answer of Joseph, it is averred that he had no title to the property in controversy at the time of the transactions complained of by the plaintiff, but that the title thereto was vested in his co-defendant. The separate answer of Lucy is not materially different from the answer of her husband. Afterwards a replication was filed, and upon these issues the cause was tried to the court, without a jury. The trial resulted in a judgment of nonsuit. The plaintiff brings the case here by appeal.

J. W. Easton and H. P. Krell, for appellant.

John A. Ewing and Charles Cavender, for appellees.

HAYT C.J. (after stating the facts).

Plaintiff to sustain the issues on his part, introduced considerable correspondence, conducted by letters and telegrams, with the defendant Joseph. The first letter from this defendant is dated Chicago, September 11, 1891. In this the defendant offers to sell to the plaintiff a one-fourth interest in the properties named in the complaint, for the sum of $2,250. Of this amount, $1,000 or $1,250 was to be spot cash, balance in six months or one year. Plaintiff replied to this letter soon after receiving it, and in his reply makes an offer of $1,500 for the property. This letter was followed by a number of others between the parties. By one bearing date October 2, 1891, the defendant Joseph offers to sell a one-fourth interest in the property for $2,000,--$1,000 in spot cash, balance in 6, 9, and 12 months, or balance in 12 months,--and adds: 'Will be satisfied with a land contract or trust deed; any way to make the balance entirely safe and secure.' On October 7th the plaintiff telegraphed the defendant Joseph: 'Will accept offer. Letter of advice mailed.' The letter spoken of in this telegram also bears date October 7th. In this letter, plaintiff agrees to pay the price mentioned. As to security it is said: 'We will not disagree as to the manner of conveyance and security on payments, it being lawful.' There is some evidence going to show that the defendant Joseph was never the real owner of this property, but that he held only the naked, legal title thereto, the equitable title being in his wife, Lucy, and her sisters, by inheritance from their father, Dr. Cole. While plaint...