Caldwell v. Davis

• Decision Date: 25 November 1887
• Citation: 10 Colo. 481,15 P. 696
• Parties: CALDWELL v. DAVIS.
• Court: Colorado Supreme Court

15 P. 696

10 Colo. 481

CALDWELL v. DAVIS.

Supreme Court of Colorado

November 25, 1887

Commissioners' decision. Appeal from district court, Dolores county.

Appellant in his complaint alleged a copartnership between himself and defendant, formed for the purpose of buying and selling an option of the Bullion, Hidden Treasure, and Cleveland mining claims; that on the nineteenth day of April, 1880, H. S Rutan, Stillman P. Norton, and Ebert Norton, the owners of said mining claims, made to E. L. Davis and H. J. Caldwell appellee and appellant herein, a bond, conditioned to convey said claims to said Davis and Caldwell, upon payment by them of the sum of $7,500 on or before July 22, 1880, in consideration of the sum of $500 paid by said Davis and Caldwell; that plaintiff went east, and expended a large sum of money, towit, the sum of more than $700, in endeavoring to sell said claims; that during plaintiff's absence from this state endeavoring to make such sale, the defendant negotiated a sale of an undivided one-half of said mining claims to Jacob Ohlwiler for the sum of $8,000, and that said agreement of sale was afterwards carried out; that, upon the return of plaintiff to this state, and on the twelfth day of July, 1880, the defendant, with intent to defraud the plaintiff, fraudulently suppressed and concealed from plaintiff that he had made said agreement with Ohlwiler, and kept plaintiff in total ignorance thereof, and said nothing to plaintiff about his having sought or found a purchaser for said claims, and represented to plaintiff that he had not succeeded in finding a purchaser, and that he desired to purchase said mining claims for himself; that plaintiff relying wholly upon the good faith, honor, and integrity of the defendant, and in total ignorance of said sale to Ohlwiler, assigned all his interest in said bond and property to the defendant for the sum of $500 and a horse of the value of $100; that, at the time said assignment was made, there was no accounting or settlements, between plaintiff and defendant, as to their said partnership affairs, and that there never has been such an accounting or settlement; that on the thirteenth day of July, 1880, the said owners of said mining claims made, executed, and delivered to defendant, and to said Jacob Ohlwiler, deeds to the whole of said mining claims, share and share alike; that said Ohlwiler paid all of the consideration therefor, being the full sum of $8,000, and that defendant paid no consideration therefor, but that he obtained an undivided one-half interest in and to each of said claims, and the sum of $500, on account of and by means of said option or title bond on said mining claims; that said undivided one-half of said mining claims and said $500 are gains and profits legitimately accruing to said copartnership; and plaintiff asks that an accounting may be had between plaintiff and defendant as to all partnership transactions regarding said option and mining claims, and offers to pay to defendant any sum that may be found due from the plaintiff to defendant, but charges the fact to be that defendant will be found to be a debtor to the plaintiff on such accounting; that suspicion of the fraud was first raised in the plaintiff's mind in the summer of 1882, but that the facts were not discovered until the fall of 1882, and that this suit was instituted as soon after such discovery as the nature of the case would admit. Prayed the judgment of the court that said assignment from plaintiff to defendant be declared fraudulent and void; that an account be taken of all copartnership dealings and transactions; that said partnership be dissolved; and that defendant be adjudged to convey by deed to the plaintiff an undivided one-quarter interest in and to each of said mining claims.

Defendant in his answer, denies the copartnership; denies that, during the absence of the plaintiff from this state, defendant succeeded in finding a purchaser for any portion of said claims, or made with Ohlwiler any agreement as to a sale of said claims, or any interest therein; denies any intent to defraud plaintiff, or that he fraudulently suppressed or concealed the fact of having made any agreement for the sale of said claims, or any interest therein; denies that he induced the plaintiff, by any fraudulent concealments or false representations, to make the assignment to him; alleges that, by agreement between plaintiff and defendant, the duty of selling said claims devolved solely on the plaintiff; alleges, upon information and belief, that plaintiff acquired full and complete knowledge of all circumstances surrounding and affecting the acquirement by said Ohlwiler of an interest in said claims.

Replication of plaintiff denies that the duty of selling said mining claims, or any part thereof, devolved solely upon the plaintiff; denies that in the month of July, 1880, he had knowledge of the circumstances of the sale to Ohlwiler, and avers that he did not and could not obtain such knowledge until 18 months after such date.

Trial to the court, and judgment for defendant, from which plaintiff appealed.

The evidence shows that Davis and Caldwell entered into an agreement to get a bond on the Bullion, Hidden Treasure, and Cleveland lode mining claims, for the purpose of selling the option so acquired at a profit; that they obtained such bond on the nineteenth day of April, 1880, by which bond the owners of said claims, in consideration of the sum of $500 to them in hand paid by Davis and Caldwell, agreed to convey to E. L. Davis and H. J. Caldwell said claims, upon the payment of the sum of $7,500 on or before July 22, 1880; that Davis and Caldwell each paid one-half of said sum of $500; that Caldwell went east to sell said option immediately after said bond was secured, and returned to this state on the eleventh day of July, 1880, without having made a sale; that before Caldwell returned from the east, and some time in the forepart of June, he wrote to Davis that he had failed to make a sale, and that he did not feel disposed to put the amount of the bonded price of the properties into them; that Davis, upon the receipt of this letter, commenced negotiations with Jacob Ohlwiler for a sale to him of an interest in the bonded property.

The following testimony of Jacob Ohlwiler clearly shows the nature of the transaction between Davis and Ohlwiler: ' Question. When did you become interested in these claims? Answer. In 1880. Q. About what time? A. July 13. Q. How did you come to get interested, and how did you get interested in these claims? A. By purchase. Q. From whom? A. From E. L. Davis,--from the owners through E. L Davis. Q. How were you induced did you come--to buy them or obtain an interest in them? A. By proposition from E. L. Davis. Q. When was that proposition first made to you? A. I couldn't tell the date; but I think some time in June,--the latter part of June. Q. What was the proposition that you should pay for the half; how much did he propose that you should pay for half? A. Eight thousand dollars. Q. Did he explain to you, or did you have any conversation with him, in regard to the condition in which the title to the property stood? A. Yes, sir; Caldwell and he (Davis) had a bond on it. Q. Did he state how much of a bond? A. No. Q. Did he state the bonded price? A. No, sir. Q. Did you know what the bonded price was? A. Not at that time. Q. State, Mr. Ohlwiler, what the substance of the conversation was you had at this time at Columbus or Telluride with Mr. Davis with reference to these mines,--these lodes. State the substance of the conversation you had. A. Well, I recollect he stated that he (Mr. Davis) and Mr. Caldwell had a bond on the mine, and if Mr. Caldwell did not make a sale they were for sale, and that I could buy a half interest or more. That was about all that was said at that meeting; that was the substance. Q. How long after this conversation with Mr. Davis at Columbia--how long a period elapsed--before you made any preparation to purchase a half interest in this property? A. I don't fully recall the time. It was after some several weeks, though I don't know how many,--until several weeks after I talked with Davis upon the subject. Q. In the mean time, between the conversation at Columbia and the next conversation you had with Davis, you entered into a correspondence with another person with regard to this one-half interest? A. Yes, sir. Q. When did you next have a conversation with Davis with reference to this property? A. I stated, several weeks hence. Q. Where was it? A. At Ouray, I think. Q. Can you remember about the date, or near the date? A. I don't think I can. Q. Do you remember how long previous to your buying an interest in the property it was? A. No; I can't fix the date. Q. Well then, days, weeks, or months? A. It may have been two weeks before I made the purchase. Q. And what was the substance of this conversation? A. That I was to correspond with my friends in regard to it, and see whether I could raise the means to meet the payment. Q. Did you have any conversation with Davis at Ouray concerning the condition in which the property was, in which the title of the property stood, and how you were to receive one-half interest in the property for the eight thousand dollars? A. I understood that Mr. Caldwell could not sell the property, and that I would look for a straight title from him, or I didn't want the property. Q. From whom? A. From Davis or any other person,--a straight title for half of the interest. Q. Did you have any conversation with Davis in regard to the manner in which you were to receive this straight title to one-half interest,--how Davis was to arrange the matter so as to give you a straight title? A. I think that was in the...