Davis v. Thomas

• Decision Date: 04 March 1901
• Citation: 64 P. 187,28 Colo. 303
• Parties: DAVIS v. THOMAS.
• Court: Colorado Supreme Court

64 P. 187

28 Colo. 303

DAVIS v. THOMAS.

Supreme Court of Colorado

March 4, 1901

Error to district court, San Miguel county.

Action by Edwin L. Davis against T. E. Thomas. From a judgment of nonsuit, plaintiff brings error. Affirmed.

Chas. J. Hughes, Jr., and M. B. Gerry, for plaintiff in error.

Thomas Bryant & Lee, for defendant in error.

GABBERT J.

This action was commenced by plaintiff in error to compel defendant in error to convey to him an interest in the Thomas lode. He bases his right to this relief upon an alleged contract, which he claims was entered into between them whereby it was mutually agreed that he should defray the expenses of surveying and perfecting such location, in consideration of which the defendant was to convey him an interest therein. He further claims that he has complied with this agreement upon his part. At the conclusion of the evidence on the part of plaintiff, defendant moved for a nonsuit, which was sustained. The reason assigned by the trial judge for this judgment is that the evidence did not establish that a contract with respect to the subject-matter of controversy had been entered into between the parties. Several propositions are argued by counsel for plaintiff in support of their contention that the judgment of the trial court should be reversed, but it is only necessary to consider the one upon which the court based its judgment. This necessitates a brief statement of the testimony. On his own behalf, plaintiff, in response to the question to state what took place between Mr. Thomas and himself, beginning with the first and telling all the conversations, stated: 'There were several conversations. Mr. Thomas came up to my office shortly after he had found a vein near the Nellie and Ella veins, and told me about them several times. I don't remember how many. Then, on the 11th day of June, he came up to my office, and made a proposition to me that, if I would pay for the survey and assessment work, he would either locate me in, or deed me a half interest in, the property; and I said to him then that I had sold the Nellie and Ella, and if it conflicted, or was on their surface ground, I did not want to have anything to do with it. I said I would go and employ a surveyor, and have him make the survey. I went to Mr. Greenwood's office and did not find him in. The next morning I met him in front of my house, on the street, and employed him to go up there and make the survey. * * * Q. Did you ever have any other conversation with Mr. Thomas on that subject? A. Not until after my return from the East.' He further states, in substance, that he left for the East on the day he employed Mr. Greenwood, was absent about a month, and upon his return met Mr. Thomas, and asked him about the location and survey and was informed that he (Thomas) had changed his mind, and concluded he did not want plaintiff in with him. Counsel for plaintiff call our particular attention to the following testimony of plaintiff, wherein he states: 'He offered me either to put my name on the stake, or deed me a half interest, if I would pay for the survey and the assessment. Q. He either offered to put your name on the stake, or deed you a half interest in the claim, if you would pay for the assessment and making the survey? A. Yes, sir. Q. And was that the agreement that you accepted? A. Yes, sir.' Mr. Greenwood, the surveyor, stated, in substance, that plaintiff employed him to make the survey, telling him that he would pay him for his services; and while making this survey he spoke to defendant about putting the name of plaintiff on the location stake, to which defendant replied that plaintiff was not a party with him, and that ...