Buckhorn Plaster Co. v. Consolidated Plaster Co.

• Decision Date: 07 February 1910
• Parties: BUCKHORN PLASTER CO. et al. v. CONSOLIDATED PLASTER CO. WILD et al. v. SAME.
• Court: Colorado Supreme Court

108 P. 27

47 Colo. 516

BUCKHORN PLASTER CO. et al. v. CONSOLIDATED PLASTER CO.

WILD et al. v. SAME.

Supreme Court of Colorado, En Banc.

February 7, 1910

Rehearing Denied April 4, 1910.

Error to District Court, Larimer County; James E. Garrigues, Judge.

Suit by the Consolidated Plaster Company against Alfred Wild and others. From a judgment for complainant, the Buckhorn Plaster Company and Alfred Wild, defendants, severally bring error. Affirmed.by vendor to vendee is competent to show that the latter took with notice of the right of third persons.

Cranston, Pitkin & Moore (Hugh Butler, of counsel) for plaintiff in error.

L. R Rhodes and N. Walter Dixon, for defendant in error.

GABBERT, J.

The ultimate question involved in these cases is the right of possession and control of a certain government subdivision of land, and a structure known as the 'Loveland Buckhorn Mill,' and appurtenances, together with the land upon which the mill is situate. The Consolidated Plaster Company brought suit originally against Alfred Wild to quiet title to the property involved. The judgment was in favor of the defendant. The company brought the case to this court for review on error, where the judgment was reversed and the case remanded for a new trial. Upon filing the remittitur the Consolidated Plaster Company filed a supplemental complaint to which the Buckhorn Plaster Company and James W. Auld were made defendants. The trial of the issues made by the pleadings resulted in a judgment for the plaintiff company. From this judgment the respective plaintiffs in error have brought the case here for review separately; and as the questions involved are similar, and the rights of the plaintiffs in error are more or less dependent upon the rights of each other, they will be considered together.

The original complaint was an ordinary one to quiet title. The remaining pleadings, except the supplemental complaint, are voluminous, and we will assume, without stating them in detail or effect, that they present for consideration the questions which the respective plaintiffs in error have presented for determination. The testimony is also voluminous, and the facts thereby established, or only such parts thereof as are necessary to consider in determining these questions, will be stated. In 1892 the Stewart Stucco &amp Cement Company owned a mill located at Colorado Springs and gypsum beds situated in El Paso county. The Rocky Mountain Plaster & Stucco Manufacturing Company owned a mill located at Red Butte, Wyo., and gypsum beds located near that place. The Denver Gypsum Company owned a mill located upon leased property in the city of Denver, and held a leasehold interest in gypsum beds situate in Larimer county. Mr. Wild owned a a mill located near Loveland, known as the 'Buckhorn Mill,' and also owned certain lands and nearby gypsum beds. These several concerns were competitors in business, and in 1892 they effected a permanent consolidation by organizing the Consolidated Plaster Company, a corporation with a capital stock of $20,000, which was equally divided between the owners of the above-named plants, in consideration of which they leased to it their respective plants and gypsum beds for a period of 20 years--the term of the corporate existence of the lessee, the Consolidated Plaster Company. Mr. Wild was elected a director and vice president and general manager of the new company, and, in the capacity of manager, entered into the possession of the plant, and beds located near Loveland, and operated them for the company until some time in 1902, when he notified the other officials of the company that he had withdrawn from the consolidation and had taken possession of the Buckhorn plant for himself, and on his own account. This action on the part of Mr. Wild was the basis of the suit originally instituted against him by the Consolidated Plaster Company. The judgment of the trial court in that case was against the plaintiff, upon the ground that it was not in possession of the property at the time it instituted its action. This judgment was reversed for the reason that the manager of a corporation cannot acquire a hostile possession of its property, of which he is in charge and control as such manager, so as to prevent it from maintaining an action to quiet title under our Civil Code (section 255), which provides that such action may be brought by any person in possession by himself or his tenant of real property against any person who claims an estate therein adverse to him for the purpose of determining such adverse claim. Consolidated Plaster Co. v. Wild, 42 Colo. 202, 94 P. 285.

It is again urged upon our attention that the trial court erred in finding at the second trial that the Consolidated Plaster Company was in possession of the premises in controversy at the time it commenced its suit. The facts bearing on that question are no different from what they were when the case was here before for review, and what was then determined under these facts on that question is the law of the case; but, aside from this, there can be no question but that the attempt on the part of Mr. Wild to take possession of the premises in dispute in his own right was a nullity. He was plaintiff's manager, and in that capacity was in the possession and control of its property. While still sustaining that relation, he undertook to take possession for himself. This he could not do, for the reason that one who holds possession of real estate as manager for another cannot dispute that other's title, or, while sustaining such relation to his principal, convert its possession through him into one for himself. It is now urged that Wild's right as owner and landlord should be considered, and for this reason he could assume possession of the property himself. We do not see how this can possibly make any difference. He had leased the premises in controversy to the plaintiff company, and as its manager had entered into the possession and control of the leased premises on its behalf; and he had no more right to take possession of the leasehold interest for himself in these circumstances merely because he was the lessor and owner than if he had had not interest in the premises whatever. The leasehold interest was what was involved. That was what his principal was in possession of through him as its manager, and, while he sustained that relation to it, his possession was the possession of his principal. He could not abrogate that relation temporarily, in whole or in part, so as to relieve himself of the duty he owed the company to maintain its possession of its property, of which he was in charge. Further, the law of the case, as determined by our previous decision--42 Colo. 94 Pac., supra--is (quoting from the syllabus): 'Where the title claimed by plaintiff corporation was purely equitable, being based upon an oral contract between it and defendant, who was one of its directors, it had a right, although out of possession, to maintain an action under Mills' Ann. Code, § 255, to quiet its title.'

In 1894 the Denver plant was dismantled and the machinery used in constructing the plaint known as the 'New Buckhorn Mill,' adjacent to the old Buckhorn plant. One of the issues in the case was whether or not this new plant was constructed under an oral arrangement between the plaintiff company and Mr. Wild, whereby it was to be treated as a lease to the company under the terms and conditions of the lease originally executed by Wild. The trial court found in favor of the plaintiff company on this issue. Counsel for plaintiff in error contend that this was error for the reason that the evidence was not sufficient to justify such finding, that it was indefinite and uncertain, and invoke the rule that before an oral agreement relating to transactions which the statute of frauds requires to be in writing can be enforced upon the ground of performance by the party seeking to have it enforced, it must be clearly proved, and be definite and certain. The testimony bearing on this issue brings the case within this rule. In fact, from the testimony the findings of the trial court could not have been otherwise. Wild had a claim against the company owning the Denver plant. He brought suit against that company, levied upon its mill, had the same sold under execution, and eventually secured title by virtue of such sale. Several witnesses on behalf of the plaintiff testified to the effect that the company arranged with Mr. Wild that it would dismantle the Denver plant at its own expense, move it to the immediate vicinity of the Wild mill, use it in constructing a new plant, that the company would construct the mill building and all buildings essential, and also a railroad spur to the new mill, in consideration of which the new plant was to take the place of the old and was to be covered by the terms of the old lease, which, at the time of this arrangement, had between 15 and 16 years to run. The new mill was not constructed on the ground originally leased by Wild upon which the old plant was located, for the reason that it was more advantageous to place it some 1,200 or 1,500 feet distant because water could be more readily secured and the raw material from the quarry more easily handled, and it was also less difficult to construct the spur to that point than to the ground in the immediate vicinity of the old mill. Under this arrangement, Wild was to be the owner of the new mill on the expiration of the new lease. Witnesses for the plaintiff also testified that the company carried out this arrangement, and paid upwards of $3,000 of the expense of moving the machinery and erecting the new mill. Counsel on behalf of Wild claim that he denied such an arrangement was effected. If he did, he must...