Collins v. McClurg

• Decision Date: 23 February 1892
• Citation: 1 Colo.App. 348,29 P. 299
• Parties: COLLINS et al. v. McCLURG.
• Court: Colorado Court of Appeals

29 P. 299

1 Colo.App. 348

COLLINS et al. v. McCLURG.

Court of Appeals of Colorado

February 23, 1892

Appeal from district court, Arapahoe county; J.A. BENTLY, Judge.

Action by James A. McClurg against S.G. Collins and J.W Shackelford, as co-partners, for money had and received. Judgment for plaintiff. Defendants appeal. Affirmed.

Benedict & Phelps and Boal & Jackson, for appellants.

Bartels & Blood, for appellee.

RICHMOND P.J.

The complaint alleges that plaintiff was the owner of certain real estate situate in the city of Denver, and employed the defendants, who were real-estate agents, to find a purchaser for the property, and to sell the same for him at the best possible price that could be obtained. That the agents informed him that they could get $14,000 for the property and that relying upon said defendants as his agents, and believing the sum of $14,000 to be the best price which they as his agents, could procure for said property, he authorized and directed the defendants to sell said property for the sum of $14,000. Defendants informed the plaintiff that S.H. Elbert was the purchaser, and prepared a conveyance, and inserted therein as a consideration the sum of $16,000, and represented that they had inserted this larger consideration at the request of the purchaser; that, relying upon these representations, plaintiff executed a conveyance, and consummated the sale, receiving as the purchase price the sum of $14,000; that defendants actually received, and Elbert actually paid, the sum of $16,000 for the property; that this fact was discovered after the consummation of the sale, and this action is brought to recover the sum of $2,000. Defendants, answering the complaint, specifically deny the allegations therein, and for a second defense deny the agency and employment; admit the sale for $16,000 to Elbert, and allege that they became the purchasers at a net price, without any commissions, for the sum of $14,000; but that before the conveyance was made to them Elbert became the purchaser, and the property was conveyed by plaintiff directly to Elbert for the purpose of avoiding unnecessary conveyances. They further aver that at the time that plaintiff made the conveyance he was fully informed of the facts, and ratified and confirmed all that defendants had done. For a third defense, they allege a settlement and compromise, by and between the parties to the action, which compromise consisted in defendants returning to plaintiff a check for $350, which plaintiff had given to defendants at the time of the execution of the conveyance to Elbert as a mere gratuity, and as expressive of his good will and satisfaction of the sale which had been consummated. The replication is a specific denial of the new matters alleged in the defense. A jury was waived, and the cause was tried to the court, and the court found that plaintiff was entitled to recover the entire $2,000, with interest; upon which finding judgment was entered, and to reverse this judgment was entered, and to reverse this judgment appellants prosecute this appeal.

The contention of appellants is--First, that they were never employed as the agents of plaintiff to sell the property, but that they were purchasers, and, as evidence of this, they produced the following paper: "Office of Collins & Shackelford. Denver, Colorado, Mar. 6, 1889. Received of Collins & Shackelford, for S.G. Collins, the sum of $500, being part purchase money on the following described property: Lots No. 1, 2, 3, 4, 5, and 6, in block No. 16, Arlington Heights. The balance of $13,500 to be paid on presentation of a good and sufficient warranty deed and evidence of title, on the following terms: $5,500; note of this date for $3,000, with interest at 8 per cent. per annum, due on or before one year, and secured by trust-deed on said lots, subject to a certain note of $5,000 dated Dec. 2, 1886 favor of G.C. Whatsett, with interest at 7 per cent. per annum, and secured by deed of trust on said property; which said note of $5,000, and interest from this date, is to be assumed by said Collins or his assigns. In case such evidence of title is not furnished, the amount of this receipt to be refunded. I hereby agree to all the above conditions. JAMES A. McCLURG, Owner. S.G. COLLINS, Purchaser. Signed 3-12-89." And, second, if they were agents, defendants say that, at the time they surrendered the check for $350, plaintiff agreed that it should be in settlement of any demands against them; and on the 14th day of March they obtained a deed directly from McClurg to Elbert, and, as they claim, to avoid the execution of additional conveyances. The plaintiff's contention is that they were his agents from the first to the last, and that he never considered them in any other light; that he never recognized them as purchasers, nor did he understand that, at the time he was executing the above-recited paper, he was so recognizing them; that they never intimated, directly or indirectly, that they were receiving more than $14,000 for the property, and that when he first learned this he immediately demanded the return of his check for $350; that at that time he never admitted, directly or indirectly, that it was in full settlement of his claim. From the above statement, it will be observed that there were practically two issues: First, the employment and agency by plaintiff of defendants; and, second, was there such a compromise and settlement as would bind the plaintiff?

Plaintiff testified that a long time prior to the sale he had various conversations with the defendants concerning a sale of the property; that their sign as real-estate agents was placed upon the property; that some time afterwards, and while he was absent from the state, and in the city of Washington, he received various telegrams, in reply to which he stated that he would take $14,000 for six lots; that thereafter defendants brought to him a certain paper for his signature, and subsequently they brought to him a deed of conveyance, in which the consideration was nominated as $16,000; that at the time of the execution of this conveyance to Elbert he remarked the fact that the consideration actually expressed was in excess of the consideration to be paid, to which one of the defendants replied that it was for the purpose of booming real estate that they had some conversation concerning commissions, in which he asked them not to press him too hard in this particular, to which they replied they would not strike him for the regular commission, which would be 5 per cent. for the first $5,000, and 2 1/2 per cent. for the balance, but would strike for 2 1/2 per cent. straight, and that thereupon he gave them a check for $350. Elbert testified that he had paid for the property $16,000, and that he was informed it was the seller's price. After discovering the fact that defendants had received the sum of $16,000 as the purchase price of the property, McClurg called upon them, and, in a somewhat excited state, demanded the return of his check for $350, which was given him, and immediately destroyed by plaintiff. The court found both issues in favor of plaintiff, and we are inclined to think that its conclusion was correct. True it is that there is a conflict of testimony relative to the compromise and settlement, still we think that there...