Colburn v. Riley

• Decision Date: 14 March 1898
• Citation: 11 Colo.App. 184,52 P. 684
• Parties: COLBURN v. RILEY.
• Court: Colorado Court of Appeals

52 P. 684

11 Colo.App. 184

COLBURN v. RILEY.

Court of Appeals of Colorado

March 14, 1898

Appeal from district court, El Paso county.

Action by E.J. Riley against W.H. Colburn. From a judgment for plaintiff, defendant appeals. Affirmed.

Vanatta & Cunningham, for appellant.

W.S Morris, for appellee.

WILSON J.

This was an action to redeem and recover possession of 312,000 shares of the capital stock of the Baltimore Gold Mining &amp Milling Company, claimed to have been assigned and delivered to defendant as a pledge to secure a loan. It was alleged that Mrs. S.A. Riley borrowed $150 from defendant upon a pledge of this stock, receiving at the time from defendant a certificate or receipt to that effect, as follows "Colorado Springs, June 4, 1894. Received of S.A. Riley 312,000 shares of the Baltimore Gold Mining & Milling Company stock, which I will return on payment of $150 and interest in sixty days. W.H Colburn." After maturity it was alleged that Mrs. Riley had tendered payment of the amount of the loan and interest, and demanded the return of the shares of stock, which was refused. Thereupon she commenced this suit. During the pendency of the action, the plaintiff died, and her husband, E.J. Riley, was substituted as plaintiff, it being admitted that she had assigned to him her interest in the stock, and her right of action. The complaint contained the usual averments in actions of this character, and demanded judgment for the recovery of possession of the shares, or for a certain sum, the value thereof, and for damages and costs of suit. The answer contained a general denial of the allegations of the complaint, and also an averment that, on the date of the alleged loan and execution of the receipt by defendant, the plaintiff, E.J. Riley, was the owner of the shares of stock, and that, on said date, defendant duly purchased the same from said plaintiff; that the same were thereupon assigned to him; and that, from and since said date, defendant had been the absolute owner of said stock. Upon trial to the court, the issues were found in favor of the plaintiff, and judgment was rendered that, within five days thereafter, the defendant deposit with the clerk of the court the 312,000 shares of stock in controversy, for the use of the plaintiff, and that within the same time the plaintiff pay to the clerk the sum of $167.50 for the use and benefit of defendant.

The chief contention of defendant is that the judgment was erroneous, in that judgment was not rendered in the alternative,--for the value of the stock in the...