Burris v. Anderson

• Decision Date: 17 September 1900
• Citation: 27 Colo. 506,62 P. 362
• Parties: BURRIS et al. v. ANDERSON et al.
• Court: Colorado Supreme Court

62 P. 362

27 Colo. 506

BURRIS et al. v. ANDERSON et al.

Supreme Court of Colorado

September 17, 1900

Appeal from district court, El Paso county.

Suit by James Doyle and others against Minnie E. Anderson and others. From a judgment in favor of defendants Minnie E. Anderson and others, defendant William M. Burris and another appeal. Reversed.

T. M. S. Rhett, A. W. Rucker, and J. C. Helm, for appellants.

Alfred E. Parker, for appellees.

CAMPBELL C.J.

James Doyle and others brought this action to enforce the specific performance of a contract. The principal defendants were Minnie E. Anderson and others, who are the appellees in this court. It was alleged that they entered into a contract with the plaintiffs, by the terms of which they agreed to convey certain interests in mining property at Cripple Creek, and that they now wrongfully refuse to perform it. The appellants, Burris and Brandenburg, were named as co-defendants; it being averred that they claimed some right or interest in the property adverse both to plaintiffs and their co-defendants. The appellees, as defendants below filed their answer to the complaint, as did also the appellants. The latter admitted the making of the contract by plaintiffs and appellees as set up in the complaint, and also filed their cross bill or cross complaint, in which they set forth certain agreements, as constituting one entire contract, by the terms of which appellees agreed--before their contract with plaintiffs was made, and of which the latter had knowledge--to convey to appellants the same property that is the subject-matter of the contract set up in the complaint. Afterwards appellants filed what is called in the record an 'amended and supplemental cross complaint,' relying upon the same contract, to which appellees filed their separate answer and cross complaint. The case proceeded to trial upon the original complaint of Doyle and others, and the answers of the different defendants, and upon the amended and supplemental cross complaint of the appellants, and the answer of appellees thereto. All of the issues thus raised were tried at the same time. The findings were against the plaintiffs, and their complaint was dismissed; and as between appellants and appellees, under the amended and supplemental cross complaint of the former, the findings were in favor of appellees. From the judgment rendered against them on such findings, appellants have appealed to this court.

It appears from the record that the matters principally, if not exclusively, relied upon by appellees below to defeat the cause of action set up in the amended and supplemental cross complaint of appellants, were (1) that the contract relied upon was too ambiguous to be specifically performed; (2) that appellants, failing to comply with the terms thereof to be by them performed, lost the right to specific performance; (3) that the appellants fraudulently obtained from the appellees the contract in question, and for this reason it should not be enforced against them. Upon all these questions, urged by way of defense by appellees, the trial court found against them; but upon the ground that the authority of the appellees, who signed the contract, to act for the other appellees, in whom the legal title stood, had not been established, relief was denied the appellants. This contract was not signed by those owning the property, but by the husbands and brother of the owners. The claim of appellants was that they signed it as the agents of the owners, and that the latter, after a full knowledge of the terms of the contract, ratified and approved the same, and acquiesced in and enjoyed its benefits. The trial court held that there was no evidence, and no attempt upon the part of appellants, to show that the alleged agency existed, and for this reason alone entered a decree in favor of appellees. At the close of the evidence the case was taken under advisement by the court, the respective counsel submitting briefs, but not arguing the case orally; and at the end of 90 days findings were made, and a decree entered. We are persuaded that the learned trial judge overlooked the evidence of agency, which ought to have been considered, and committed error in refusing to consider the admissions of agency in appellees' pleadings, as we shall presently see. In the exhaustive and able opinion handed down by the judge, it is made very clear that the only defenses available to the appellees under the pleadings were not made out; and their conduct, as characterized by him, which the record so signally manifests is not such as to commend them to the especial consideration or tender care of a court of equity. Had the authorities touching the admission of the pleadings been brought to the attention of the trial court, and had there been oral argument in which the uncontradicted evidence could have been reviewed, we are satisfied that the findings and decree would have been in favor of appellants. This conclusion is reached after a careful examination of the voluminous record, and its correctness is obvious from the following:

1. In their verified answer to the complaint of plaintiffs, all the appellees affirmatively alleged, as one reason why they should not be compelled specifically to perform their contract with plaintiffs, that before it was entered into they had made another contract with their co-defendants (appellants), by the terms of which they agreed to convey the same property to appellants, full knowledge of which plaintiffs had at and before the time their alleged rights accrued. Here was a distinct admission or affirmation under oath by all the appellees that the...