Carlson v. Akeyson

• Court: Colorado Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Carlson v. Akeyson, 65 Colo. 35, 172 P. 1058 (Colo. 1918)
• Decision Date: 06 May 1918
• Docket Number: 9373.
• Parties: CARISON v. AKEYSON.

172 P. 1058

65 Colo. 35

CARISON v. AKEYSON.

No. 9373.

Supreme Court of Colorado

May 6, 1918

Error to District Court, Alamosa County; A. Watson McHendrie Judge.

Action by Mary E. Akeyson against C. H. Price, A. W. Carlson, and others. Judgment for plaintiff, and defendant Carlson brings error, and applies for supersedeas. Supersedeas denied, and judgment affirmed.

Fred D Stanley and W. W. Platt, both of Alamosa, for plaintiff in error.

James D. Pilcher and Albert L. Moses, both of Alamosa, for defendant in error.

ALLEN J.

This is a suit which was brought by Mary E. Akeyson against C. H. Price, A. W. Carlson, and the public trustees of Alamosa and Costilla counties, for the purpose of securing the cancellation of a promissory note and deed of trust given by the plaintiff to the defendant Carlson. The trial court rendered a judgment in favor of plaintiff. The defendant Carlson brings the case here for review, and asks that the writ of error herein be made to operate as a supersedeas.

Practically all of the evidence received at the trial consisted of a typewritten transcript of the testimony which had been given by the witnesses at a former trial of this case. Under this situation, we are not bound by the findings of the trial court in considering the main contention of the plaintiff in error, which is, that the judgment is contrary to the law and the evidence. Hagerman v. Bates, 30 Colo. 89, 94, 69 P. 526.

Upon a review of the evidence, and endeavoring to remain uninfluenced by the findings of the trial court, we are of the opinion that a preponderance of the evidence is in favor of the plaintiff, and that the judgment of the trial court is right.

The testimony discloses that some time prior to October, 1912 both the defendant Carlson and the plaintiff became interested in the Rio Grande Development Company, as a result of the efforts and representations of the defendant Price. In a pamphlet which Price gave to the plaintiff it was represented that:

'The total number of acres owned by the Rio Grande Development Company is 80,000, and 20,000 acres of this is irrigable land that can be watered at a very small cost. * * * There is also mineral lands of great value included in the holdings of this company. We have some valuable coal deposits in the mountains at the east of this land. The veins of coal are anywhere from 14 inches up to 6 feet in width.'

The testimony warrants the inference that Carlson and Price shortly prior to the date above mentioned, desired to obtain certain stock in the company which was held by one Gordon, at Spokane, Wash. Price was without means, and Carlson was not willing to risk his money in the enterprise. The defendant Price induced the plaintiff, a woman without much business experience, to contemplate aiding him in securing the Gordon stock by giving a trust deed upon her land. This fact evidently became known to Carlson, through Price. Thereafter, and on or about October 31, 1912, Carlson came to the home of the plaintiff, and, according to the testimony of the plaintiff, assured her that the company had good title to the real estate which it assumed to own. Relying upon that assurance, as well as upon the representations theretofore made by Price, the plaintiff delivered to the defendant Carlson the note and trust deed involved in this suit. It is claimed by the plaintiff in error, the defendant Carlson, that in consideration of the note and trust deed, Carlson advanced $3,000 to the plaintiff. The circumstances disclosed by the evidence, however, lead us to the conclusion that Carlson advanced no money whatever to the plaintiff, in any manner, but advanced the $3,000 to the defendant Price, in the manner hereinafter mentioned. The money was deposited by Carlson himself, in a local bank. The plaintiff had nothing whatever to do with the disposition or control of this money, and never received any of it. The bank itself regarded the deposit as a part of a transaction called by its cashier, 'the Price-Gordon and Carlson deal.' Only $1,000 of this deposit was used in procuring the Gordon stock. The remaining $2,000 was credited to the wife of the defendant Price, Mary E. Price, who does not appear to have been in any manner concerned with the transaction. Mrs. Akeyson, the plaintiff, received 10,000 shares of stock in the company, and the defendant Carlson received 15,000 shares, as a result of the 'Price-Gordon and Carlson deal.' The stock was worthless, and the plaintiff never received anything of value whatever for her note and deed of trust. The evidence warrants the conclusion that the company never owned the land which it claimed to possess nor any part...