Devereux v. Sperry, 14529.

• Decision Date: 27 March 1939
• Docket Number: 14529.
• Parties: DEVEREUX et al. v. SPERRY et al.
• Court: Colorado Supreme Court

89 P.2d 532

104 Colo. 158

DEVEREUX et al. v. SPERRY et al.

No. 14529.

Supreme Court of Colorado

March 27, 1939

Rehearing Denied April 17, 1939.

In Department.

Error to Gunnison County Court; Clude Welch, Judge.

Action by Guy C. Sperry against the Consolidated Metals Mining Company, wherein plaintiff attached property allegedly owned by defendant and J. M. Devereux, trustee, acting by and for himself, and others, intervened. Judgment for plaintiff and the interveners bring error and apply for supersedeas.

Affirmed.

Nourse & Dutcher, of Gunnison, for plaintiffs in error.

Stone Porter & Stewart, of Gunnison, for defendants in error.

BAKKE Justice.

Plaintiffs in error were interveners below in an attachment proceeding brought by defendant in error Sperry to reach certain machinery allegedly owned by defendant in error the Consolidated Metals Mining Company, a Kansas corporation operating a mine in Colorado. Sperry had judgment for $975 which we are asked to reverse on application for supersedeas.

The pleadings are unnecessarily involved and somewhat confusing but the facts and the law applicable thereto are relatively simple. The parties, other than the Consolidated Metals Mining Company herein designated as the company, will be mentioned by name.

In 1930, Sperry and two associates owned some mining claims in Gunnison county. Sperry became acquainted with Devereux, one of the plaintiffs in error, who financed Miller in organizing the company in Kansas, to which organization Devereux contributed about $1,000 and Schafer, about $2,500. In consideration of the conveyance of the mining claims to the company, Sperry and his associates received fifty-one per cent of the stock in the company.

A substantial part of the money raised apparently was used to purchase the machinery involved in this suit. Sperry was chosen vice president and appointed superintendent of the mining venture which the company was organized to promote at a salary alleged to be $200 a month. He received for such services a total sum of about $1,200, and was in charge of the property in Colorado, the other parties living in Kansas. The venture did not turn out well and there was considerable correspondence between Devereux and Sperry as to what should be done, of which the following is a part:

'El Dorado, Kansas,

'March 31, 1934.

'Mr. Guy C. Sperry

'Paonia, Colo.

'Dear Mr. Sperry:

'Well at last I have things shaped around so that we can go ahead with our reorganization plans, it has taken some money and that stuff is just a little hard to get but it is rolling in now and we will be able to go without more delay. As you suggested we will have a receiver appointed and then form a new company to take over the old and after the new company is formed I am confident that things will hum, because the capital is assured, if it wasn't I don't believe I would go ahead, but since it is waiting I feel that we should see if that claim wont make some money for all of us.

'The enclosed paper is for your signature and if o. k. which I think it is, will appreciate your signing and returning as soon as possible, am writing this during office hours, so please excuse the haste, will write you from time to time as to progress and anything you want to know, just drop a line.

'Yours truly,

'J. M. Devereux'

'Paonia Colo. April 6th, 1934.

'Dr. James Devereux;

'El Dorado, Kansas.

'Dear Sir: Enclosed the summons properly signed Before a notary, was delayed a few days as I wanted to get Tays idea as he is interested as much as I am, so he is agreeable to the reorganization plan.

'Now then Dr. I wished you would give me full details at once as too your plans of reorganizing. How long will this take in that state,?, and wont we have to have a meeting and elect all new officers,?,

'I hope we can get things going soon and line up with the Lead King people on their mill, which is going to be put in shape to run this spring. Metal mining looks better than it ever has for this section, of the country.

'What is Miller doing is he still their,?, Do you ever see Mr. Schafer, well Dr give me a line up and full details so I will know what is going on,

'Very truly yours,

'Guy C. Sperry. Paonia, Colo.'

The paper mentioned in this correspondence which Sperry was requested to sign, and did sign, thinking that it was a part of the plan to reorganize the company, was a waiver of summons in a Kansas case asking for the dissolution of the company; the petition in the case (copy of which was not sent to Sperry) alleging inter alia: 'That the defendant Guy C. Sperry has some claim against the said corporation the amount...