Caldwell v. Willey

• Decision Date: 06 March 1891
• Citation: 16 Colo. 169,26 P. 161
• Parties: CALDWELL v. WILLEY.
• Court: Colorado Supreme Court

26 P. 161

16 Colo. 169

CALDWELL v. WILLEY.

Supreme Court of Colorado

March 6, 1891

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

Geo. C. Norris and R. H Gilmore, for appellant.

John G. Taylor and A. Macon, for appellee.

REED C.

This was an action brought by appellee to recover damages for a failure to execute and deliver a lease to a certain coal mine in Fremont county. The issues were made by cross-complaint and answer. In some former litigation, which appears to have been between the Caldwell Coal & Oil Company,--a corporation of which appellant was president,--some other corporation and appellee, the nature and result of which are not disclosed in this record, it appears a stipulation was filed under which an agreed judgment was entered, and that by such document it was agreed that this action should be prosecuted by the appellee against Caldwell individually. In making up abstracts of records counsel unfortunately, frequently, well knowing the premises themselves, forget that this court is not equally well informed in regard to proceedings in the trial court, and cause much labor and trouble by not stating full and sufficient facts, and we are compelled to grope about, and, by inference from the meager facts stated, to arrive at some conclusion in the premises.

The case in some respects is quite peculiar. The allegations in the cross-complaint are that on June 15, 1884, Elder, Jones, Delano, Colo, and appellant were the owners in fee and in possession of certain lands, and that they, 'desiring to have the same prospected for coal, agreed with appellee that he [appellee] should explore for coal, and, in case of discovery of a vein, said Elder, Jones, Cole, Delano, and Caldwell, for certain considerations, which included payment of royalties * * * should and would execute to him (Willey) their certain lease and demise in writing of the whole of said premises for a term of five years,' etc. 'That in and about the making of the said agreement with appellee the said Elder, Jones, Cole, and Delano were represented by the said Caldwell, who, in making the said agreement, acted and agreed for and on behalf not only of him, the said Caldwell, but of the said Elder, Jones, Cole, and Delano; and that Caldwell was * * * authorized so to agree,' for the others. This is the only agreement alleged,--a joint agreement of all the owners; the consideration moving them being to have 'the land prospected for coal.' It is also alleged that, after the agreement was made, Elder, Jones, Cole, and Delano were fully informed, and ratified it, and permitted him to go to work upon the land; that, relying upon the agreement, appellee entered in to possession, expended large sums of money, and on his part complied fully therewith; that Caldwell, Jones, Colo, and Delano delayed and finally refused to execute a lease, and that appellee sustained great damage; prays that all the last-named parties be made defendants, for a decree compelling a lease, for an injunction, damages, etc. The complaint was verified by appellee. There was no joint answer, and neither Elder, Cole, Jones, nor Delano answered. Appellant answered individually, denying that he, individually or in connection with others, at any time made an agreement to lease the land or the mine for five years, or any other time; denied that at any time before November 21, 1884, he was the owner of any part of or had any interest in the land; denied that he desired to have the land prospected for coal, or that he, individually or in connection with others, entered into an agreement with appellee to explore the land for coal; denied that he, for himself or in conection with others, was to execute any lease whatever; denied that he ever represented Elder, Jones, Cole, and Delano, or either of them, in any agreement with appellee as agent; admitted that on June 15, 1884, he was in possession of the premises, but alleged it to have been under a lease from the owners, that expired on the 15th of November, 1884; admitted that appellee mined and took coal from a vein on the premises, but denied that it was under any agreement with him, or with his authority, etc. The answer was verified. It is evident that there is not a full transcript of the cross-complaint in this record. It appears inferentially that certain corporations were made co-defendants. Who they were, and for what purposes joined, we are not informed. It is stated that 'the corporations answered the cross-complaint, but no issue concerning them was tried.' The answers of the corporations are not given. The trial was to a jury, resulting in a verdict for appellee for $3,345, and a judgment upon the verdict.

It appears to have been conceded, or at least not disputed, that at the time of the alleged making of the agreement appellant owned no interest in the property, and that he first acquired an interest in November following. It is also conceded, or not disputed, that at the date of the alleged agreement for a lease neither appellant nor the corporation of which he was president had any interest in the property, except a lease from the owners, expiring on November 15th of the same year; and that at the expiration of such lease the owners went into possession, and retained it until January 1, 1885, when a new lease was made to appellant for one year.

Numerous errors are assigned, many of which it will not be necessary to discuss. It is urged that the damages allowed were excessive. Nearly all of the evidence in the record upon the question of damage was that of appellee. Apparently no effort at reduction was made by appellant. If the finding upon the other issues was correct, and can be sustained, the assessment must stand. The amount was warranted by the evidence, and seems reasonably moderate under the proof. A party cannot let such questions go by default upon the trial, and urge them here, when the only question is as to the amount awarded, and the verdict does not exceed the proof.

Upon the trial there was no evidence introduced nor attempt made to establish a joint agreement by the owners to make a lease, nor of any desire to have the land explored or prospected for coal, which was alleged as the incentive or consideration for the supposed promise. It was shown and conceded that Caldwell was not an owner; that he was in possession under a lease from the owners; consequently, that the owners had no control of the property for the purposes supposed at the time, nor the possession of the property as alleged in the cross-complaint. No effort was made to in any way connect the owners with the transaction. No proof was made or attempted in support of the allegation that Caldwell acted as the agent of the owners; and, although the only agreement alleged was a joint one, where all the owners were parties, appellee (Willey) testified to an agreement with Caldwell alone, stating in his evidence that he supposed him (Caldwell) to be the sole owner of the 3,000 acres of land, and that he never knew that he was not the sole owner until November 15, 1884.

The testimony is very voluminous and contradictory. The only person testifying directly and positively to a contract for a lease for five years, is the appellee. J. C. Bansemer's testimony was taken on behalf of appellee. He says that Willey entered upon the land, and commenced opening the mine July 8, 1884, 'by permission, and with the expectation of getting a lease from Caldwell. I became interested with Willey, holding one-half interest; I furnishing what cash means were needed and credit to buy other materials. * * * After the expiration of the Caldwell Coal & Oil Company's lease, November 15, 1884, Willey desired me to get a lease from Mr. Jones, who represented the largest portion of the property.' In answer to an interrogatory he says: 'Mr. Willey stated that he had no doubt that he could get a lease, but that it always ended in failure. Twice he represented that he had a lease from Caldwell, but was never able to produce it.' In answer to the interrogatory: 'Did you ever purchase from Mr. Willey his claim or interest in the Willey mine, and, if so, when?' he said: 'Mr. Willey sold me his entire interest in the mine April 21, 1885, with the positive assurance that I should have a lease.' This...